Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall: (a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders; (c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee; (d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and (e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall: (x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange; (y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and (z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Registration Rights Agreement (Merisant Foreign Holdings I Inc), Registration Rights Agreement (Tabletop Holdings Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) use their reasonable best efforts to prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Issue Date”), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, Of- fer”) to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities Notes and registered under are unconditionally guaranteed by the Securities Act Guarantors (the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall , except that the Exchange Securities will not contain terms with respect to transfer restrictions, (ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 225 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the “Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"Period”). Following The Exchange Securities will be issued under the declaration of Indenture or an indenture (the “Exchange Securities Indenture”) between the Company, the Guarantors party thereto and the Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the “Exchange Securities Trustee”), such indenture to be identical in all material respects to the Indenture, except with respect to the transfer restrictions relating to the Securities (as described above). Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's business Holder’s business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Each Issuer, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALER"), “Exchanging Dealer”) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "“Exchange Offer Procedures" section ” and the "“Purpose of the Exchange Offer" section” sections of such prospectus, and (c) in Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities ActAct and the Exchange Act (“Regulation S-K”), as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities (as defined) that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Exchanging Dealers, and the Issuers shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the “Private Exchange”), a like aggregate principal amount of debt securities of the Company issued under and the Indenture and Guarantors that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”), except with respect to the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange Offer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of any of the Company or Issuers or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, each of the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes be- comes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Lin Tv Corp), Exchange and Registration Rights Agreement (Lin Tv Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after The Issuers and the Company has complied with the ultimate paragraph of this Section 1), the Company Guarantors shall use their reasonable best efforts to prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an Form S-4 (or, if applicable, on another appropriate form form) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture, “Exchange Notes”) that are identical in all material respects to the Initial Securities Notes, except that the Exchange Notes will not be subject to restrictions on transfer or to any increase in annual interest for failure to comply with this Agreement and registered under thereafter cause the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 365 days after the Closing Date date of original issuance of the Notes (such 360th day being an "EFFECTIVENESS DEADLINE") the “Issue Date”), and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer completed no later than 40 395 days after the date Issue Date. The Exchange Notes will be issued under the Indenture or an indenture (the “Exchange Indenture”) among the Issuers, the Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the “Exchange Trustee”), such indenture to be identical to the Indenture, except that such indenture shall not contain any provisions relating to restrictions on which transfer with respect to the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Notes or to any increase in annual interest for failure to comply with this Agreement. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers and the Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer Offer, to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of either of the Issuers or any Guarantor or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Notes that have the status of an unsold allotment remaining from the initial distribution of the Notes, (c) acquires the Exchange Securities Notes in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Guarantors, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesNotes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALER"“Exchanging Dealer”), is required may be deemed to be an “underwriter”, within the meaning of the Securities Act and must deliver a prospectus containing meeting the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose requirements of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus Securities Act in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuers and the Guarantors shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. The Registered Exchange Offer shall not be subject to any conditions, other than that the Registered Exchange Offer does not violate any applicable law or applicable interpretations of the staff of the Commission. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuers and the Guarantors shall:
(xa) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities Notes so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder Exchange Notes equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The Issuers and the Guarantors shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Issuers and the Guarantors shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 180 days after the consummation of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). The Indenture will or the Exchange Indenture, as the case may be, shall provide that the Notes and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will Notes shall vote and consent together on all matters as one class and that none of the Securities Notes or the Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Note surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesNotes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers and the Guarantors that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes to be received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act) of the Exchange Notes, (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of either of the Company Issuers or if it is an affiliate, such Holder will comply with the registration any Guarantor and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealeran Exchange Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if then such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with a sale of any resale of Exchange Notes received by such Holder pursuant to the Registered Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company Issuers and the Guarantors will ensure that (i) any the Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any the Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, at any time during the Exchange Offer Registration Period, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Registration Rights Agreement (Universal City Travel Partners), Registration Rights Agreement (Universal City Travel Partners)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, substantially identical in all material respects to the Initial Securities Securities, and registered under the Securities Act (the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 365 days after the Closing Date (such 360th 365th day being an "EFFECTIVENESS DEADLINE"“Effectiveness Deadline”) after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Closing Date”) and (ii) will keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the its Initial Securities for the applicable amount of Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements or understanding with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United StatesAct. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for the Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“The Exchange Offer Procedures" Offer” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 508, as applicable, of Regulation S-K under the Securities Act, as applicable, Act in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 120 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 120 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and substantially identical in all material respects to the Initial Securities (together, the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Registered Exchange Offer, such Holder will have had no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise reasonably required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Registration Rights Agreement (Berkshire Hathaway Energy Co), Registration Rights Agreement (Berkshire Hathaway Energy Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall prepare and, not later than 270 45 days following the Issue Date (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"as hereinafter defined), the Company and the Guarantors (i) shall file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities senior subordinated notes of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIESExchange Securities"). The Company ) substantially identical to the Securities, except for the transfer restrictions relating to the Securities, (ii) shall use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 120 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and to be consummated no later than 165 days after the Issue Date and (iiiii) shall keep the Registered Exchange Offer Registration Statement effective open for a period of not less than 30 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities Indenture") between the Company, the Company Guarantors and the Trustee or such other bank or trust company reasonably satisfactory to you, as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be substantially identical to the Indenture except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not (i) an affiliate of the Company within the meaning of the Securities ActAct or (ii) an Exchanging Dealer (as defined below) not complying with the requirements of the next sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer offer open for not less than 30 20 business days (or longer, longer if required by applicable law) after the date notice thereof is mailed to the Holders);
(c) utilize the services of a depositary an Exchange Agent for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable lawsto the Registered Exchange Offer. As soon as practicable Promptly after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder of Securities, Exchange Securities equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company and the Guarantors shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of the Securities or the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have is not engaged in, and does not intend to engage in, and has no arrangements arrangement or understanding with any person to participate in the in, a distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Company within the meaning of the Securities Act, of the Company or if it is an affiliate, such Holder it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, applicable and (iv) if such Holder is not a broker-dealer, that it is acting on behalf of any person who could not engaged in, and does not intend to engage in, make the distribution of the Exchange Securities and (v) if foregoing representations. Such Holder shall also make such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired other representations as a result of market-making activities or other trading activities and that it will may be required to acknowledge that it will deliver a prospectus in connection comply with any resale of such applicable law or Commission policy with respect to the Registered Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include include, as of the consummation of the Registered Exchange Offer, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Purchase Agreement (General Inspection Laboratories Inc), Registration Rights Agreement (General Inspection Laboratories Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, substantially identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 270 days after the Closing Date (such 360th 270th day being an "EFFECTIVENESS DEADLINE"“Effectiveness Deadline”) after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Closing Date”) and (ii) will keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements or understanding with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United StatesAct. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 508, as applicable, of Regulation S-K under the Securities Act, as applicable, Act in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 120 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 120 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and substantially identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Registered Exchange Offer, such Holder will have had no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise reasonably required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Registration Rights Agreement (Midamerican Energy Holdings Co /New/), Registration Rights Agreement (Midamerican Energy Holdings Co /New/)
Registered Exchange Offer. Unless not permitted by applicable law (after The Issuer and the Company has complied with the ultimate paragraph of this Section 1), the Company Guarantors shall use their reasonable best efforts to prepare and, not later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Euro Senior Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an Form S-4 (or, if applicable, on another appropriate form form) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Euro Senior Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesEuro Senior Notes, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act Issuer (the "EXCHANGE SECURITIESExchange Euro Senior Notes"). The Company shall use its reasonable best efforts ) that are identical to (i) the Euro Senior Notes, except that the Exchange Euro Senior Notes will not be subject to restrictions on transfer or to any increase in annual interest for failure to comply with this Agreement and thereafter cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 260 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") Issue Date, and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer completed no later than 40 290 days after the date Issue Date. The Exchange Euro Senior Notes will be issued under the Euro Senior Indenture or an indenture (the "Exchange Euro Senior Indenture") among the Issuer, the Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to the Euro Initial Purchasers, as trustee (the "Exchange Euro Senior Trustee"), such indenture to be identical to the Euro Senior Indenture, except that such indenture shall not contain any provisions relating to restrictions on which transfer with respect to the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Euro Senior Notes or to any increase in annual interest for failure to comply with this Agreement. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuer shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Euro Senior Notes for Exchange Securities Euro Senior Notes (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuer or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not a Euro Initial Purchaser holding Euro Senior Notes that have the status of an unsold allotment remaining from the initial distribution of the Euro Senior Notes, (c) acquires the Exchange Securities Euro Senior Notes in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Euro Senior Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Euro Senior Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuer, the Guarantors, the Euro Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesEuro Senior Notes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Euro Senior Notes (an "EXCHANGING DEALERExchanging Dealer"), is required may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus containing meeting the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose requirements of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus Securities Act in connection with a sale of any such Exchange Securities Euro Senior Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuer shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Euro Senior Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. The Registered Exchange Offer shall not be subject to any conditions, other than that the Registered Exchange Offer does not violate any applicable law or applicable interpretations of the staff of the Commission. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuer shall:
(xa) accept for exchange all the Securities validly Euro Senior Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities Euro Senior Notes so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesEuro Senior Trustee, as the case may be, promptly to authenticate and deliver to each Holder, Exchange Euro Senior Notes equal in principal amount to the Initial Securities Euro Senior Notes of such Holder so accepted for exchange. The Issuer shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Euro Senior Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Euro Senior Notes held by them and (ii) the Issuer shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Euro Senior Notes for a period of not less than 180 days after the consummation of the Registered Exchange Offer (such period being called the "Exchange Offer Registration Period"). The Euro Senior Indenture will or the Exchange Euro Senior Indenture, as the case may be, shall provide that the Euro Senior Notes and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will Euro Senior Notes shall vote and consent together on all matters as one class and that none of the Securities Euro Senior Notes or the Exchange Euro Senior Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security Euro Senior Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Euro Senior Note surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesEuro Senior Notes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuer that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Euro Senior Notes to be received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act) of the Exchange Euro Senior Notes, (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of the Company Issuer or if it is an affiliate, such Holder will comply with the registration any Guarantor and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealeran Exchanging Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if then such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with a sale of any resale of Exchange Euro Senior Notes received by such Holder pursuant to the Registered Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company Issuer and the Guarantors will ensure that (i) any the Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any the Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, at any time during the Exchange Offer Registration Period, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (TRW Automotive Inc), Exchange and Registration Rights Agreement (TRW Automotive Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchaser, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and Offer. Holder (iithe "Private Exchange"), a like aggregate principal amount of debt securities of the Company (the "Private Exchange Securities") an Initial Purchaser that elects are identical in all material respects to sell the Exchange Securities, except for the transfer restrictions relating to such Private Exchange Securities. The Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K will be issued under the Securities Actsame indenture as the Exchange Securities, as applicable, in connection with such sale. The and the Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Offer, and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Registration Rights Agreement (NBC Acquisition Corp), Registration Rights Agreement (NBC Acquisition Corp)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) use their reasonable best efforts to prepare and, not later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities Notes and registered under are unconditionally guaranteed by the Securities Act Guarantors (the "EXCHANGE SECURITIESExchange Securities"). The Company shall , except that the Exchange Securities will not contain terms with respect to transfer restrictions, (ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 270 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 300 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities Indenture") between the Company, the Company (i) will be entitled Guarantors party thereto and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except with respect to the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Each Issuer, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), ) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" sectionsections of such prospectus, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) if an Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("Regulation S-K"), as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities (as defined) that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Exchanging Dealers, and the Issuers shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under and the Indenture and Guarantors that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange Securities"), except with respect to the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange Offer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of any of the Company or Issuers or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, each of the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Activant Solutions Inc /De/), Exchange and Registration Rights Agreement (Activant Solutions Inc /De/)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the coverhereto, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep Act and the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker"Regulation S-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange OfferK"). If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such the Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder person is a broker-dealeran Exchanging Dealer, that it will receive Exchange such person shall comply with the prospectus delivery requirements of the Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesAct. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Purchase Agreement (Smithfield Foods Inc), Exchange and Registration Rights Agreement (Smithfield Foods Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after The Issuer and the Company has complied with the ultimate paragraph of this Section 1), the Company Guarantors shall use their reasonable best efforts to prepare and, not later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Dollar Senior Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an Form S-4 (or, if applicable, on another appropriate form form) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Dollar Senior Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesDollar Senior Notes, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act Issuer (the "EXCHANGE SECURITIESExchange Dollar Senior Notes"). The Company shall use its reasonable best efforts ) that are identical to (i) the Dollar Senior Notes, except that the Exchange Dollar Senior Notes will not be subject to restrictions on transfer or to any increase in annual interest for failure to comply with this Agreement and thereafter cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 260 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") Issue Date, and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer completed no later than 40 290 days after the date Issue Date. The Exchange Dollar Senior Notes will be issued under the Dollar Senior Indenture or an indenture (the "Exchange Dollar Senior Indenture") among the Issuer, the Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to the Dollar Initial Purchasers, as trustee (the "Exchange Dollar Senior Trustee"), such indenture to be identical to the Dollar Senior Indenture, except that such indenture shall not contain any provisions relating to restrictions on which transfer with respect to the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Dollar Senior Notes or to any increase in annual interest for failure to comply with this Agreement. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuer shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Dollar Senior Notes for Exchange Securities Dollar Senior Notes (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuer or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not a Dollar Initial Purchaser holding Dollar Senior Notes that have the status of an unsold allotment remaining from the initial distribution of the Dollar Senior Notes, (c) acquires the Exchange Securities Dollar Senior Notes in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Dollar Senior Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Dollar Senior Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuer, the Guarantors, the Dollar Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesDollar Senior Notes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Dollar Senior Notes (an "EXCHANGING DEALERExchanging Dealer"), is required may be deemed to be an "underwriter" within the meaning of the Securities Act and must deliver a prospectus containing meeting the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose requirements of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus Securities Act in connection with a sale of any such Exchange Securities Dollar Senior Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuer shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Dollar Senior Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. The Registered Exchange Offer shall not be subject to any conditions, other than that the Registered Exchange Offer does not violate any applicable law or applicable interpretations of the staff of the Commission. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuer shall:
(xf) accept for exchange all the Securities validly Dollar Senior Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yg) deliver to the Trustee for cancellation cancelation all the Initial Securities Dollar Senior Notes so accepted for exchange; and
(zh) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesDollar Senior Trustee, as the case may be, promptly to authenticate and deliver to each Holder, Exchange Dollar Senior Notes equal in principal amount to the Initial Securities Dollar Senior Notes of such Holder so accepted for exchange. The Issuer shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Dollar Senior Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Dollar Senior Notes held by them and (ii) the Issuer shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Dollar Senior Notes for a period of not less than 180 days after the consummation of the Registered Exchange Offer (such period being called the "Exchange Offer Registration Period"). The Dollar Senior Indenture will or the Exchange Dollar Senior Indenture, as the case may be, shall provide that the Dollar Senior Notes and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will Dollar Senior Notes shall vote and consent together on all matters as one class and that none of the Securities Dollar Senior Notes or the Exchange Dollar Senior Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security Dollar Senior Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Dollar Senior Note surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesDollar Senior Notes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuer that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Dollar Senior Notes to be received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act) of the Exchange Dollar Senior Notes, (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of the Company Issuer or if it is an affiliate, such Holder will comply with the registration any Guarantor and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealeran Exchanging Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if then such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with a sale of any resale of Exchange Dollar Senior Notes received by such Holder pursuant to the Registered Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company Issuer and the Guarantors will ensure that (i) any the Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any the Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, at any time during the Exchange Offer Registration Period, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (TRW Automotive Inc), Exchange and Registration Rights Agreement (TRW Automotive Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall prepare and, not later than 270 60 days following the Issue Date (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"as hereinafter defined), shall file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act (transfer restrictions relating to the "EXCHANGE SECURITIES"). The Company Securities, shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) to be consummated no later than 180 days after the Issue Date, and shall keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange OfferTrustee or such other bank or trust company reasonably satisfactory to you, the Company as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not (i) an affiliate of the Company within the meaning of the Securities ActAct or (ii) an Exchanging Dealer (as defined below) not complying with the requirements of the next sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchaser and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if the Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment it is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such a sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer offer open for not less than 30 days after the date notice of the Exchange Offer is mailed to the Holders (or longer, longer if required by applicable law) after the date notice thereof is mailed to the Holders);
(c) utilize the services of a depositary Depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder of Securities, Exchange Securities equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that Company shall make available for a period of 90 days after the consummation of the Registered Exchange Offer, a copy of the prospectus forming part of the Exchange Securities will not be subject Offer Registration Statement to the transfer restrictions set forth any broker-dealer for use in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none connection with any resale of the Securities will have the right to vote or consent as a class separate from one another on any matterExchange Securities. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Company within the meaning of the Securities Act, of the Company or if it is an affiliate, such Holder it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include include, as of the consummation of the Registered Exchange Offer, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 2 contracts
Samples: Purchase Agreement (MBW Foods Inc), Registration Rights Agreement (MBW Foods Inc)
Registered Exchange Offer. Unless not permitted Resales of New Securities by applicable law Exchanging ------------------------------------------------------------------ Dealers; Private Exchange.
(after a) The Company and the Company has complied with the ultimate paragraph of this Section 1), the Company Subsidiary Guarantors shall -------------------------- prepare and, not later than 270 150 days (such 270th day being a "FILING DEADLINE") after the date on which of the Initial Purchasers purchase original issuance of the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE")Securities, shall file with the Securities and Commission the Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), Offer Registration Statement with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company and the Subsidiary Guarantors shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 180 days after the date on which of the Exchange Offer Registration Statement is declared effective original issuance of the Securities.
(such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Subsidiary Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange New Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange New Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferNew Securities) to trade such Exchange New Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and .
(c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company and the Subsidiary Guarantors shall:
(ai) mail to each Holder a copy of the prospectus Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(bii) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the HoldersHolders (or longer if required by applicable law);
(ciii) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;; and
(iv) comply in all respects with all applicable laws.
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company and the Subsidiary Guarantors shall:
(xi) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer (it being understood that all questions as to validity, form, eligibility (including time of receipt) and acceptance of Securities tendered for exchange shall be determined by the Private ExchangeCompany in its sole discretion, which determination shall be final and binding);
(yii) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(ziii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange New Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. .
(e) The Indenture will provide that Purchasers, the Exchange Securities will not be subject Company and the Subsidiary Guarantors acknowledge that, pursuant to current interpretations by the transfer restrictions set forth Commission's staff of Section 5 of the Act, and in the Indenture and that all absence of an applicable exemption therefrom, each Exchanging Dealer may be deemed to be an "underwriter" within the Securities will vote and consent together on all matters as one class and that none meaning of the Act and must, therefore, deliver a Prospectus in connection with a sale of any New Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued received by such Exchanging Dealer pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange for Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securitiesactivities. Notwithstanding any other provisions hereofAccordingly, the Company will ensure that and the Subsidiary Guarantors shall:
(i) any include the information set forth in Annex A hereto on the cover of the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement and any amendment thereto and any prospectus in a section setting forth details of the Exchange Offer, in Annex C hereto in the underwriting or plan of distribution section of the Prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, Annex D hereto in the light Letter of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel Transmittal delivered pursuant to the Company raises a substantial question Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act during the Exchange Offer Registration Period for delivery by Exchanging Dealers in connection with sales of New Securities received pursuant to the Registered Exchange Offer, as contemplated by Section 5(h) below.
(f) In the event that any Purchaser determines that it is not eligible to whether participate in the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Purchaser, the Company will seek and the Subsidiary Guarantors shall issue and deliver to such Purchaser or the party purchasing New Securities registered under a no-action letter or other favorable decision Shelf Registration Statement as contemplated by Section 3 hereof from such Purchaser, in exchange for such Securities, a like principal amount of New Securities. The Company and the Commission allowing Subsidiary Guarantors shall use reasonable efforts to cause the Company CUSIP Service Bureau to consummate issue the same CUSIP number for such New Securities as for New Securities issued pursuant to the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Agreement (Choice Hotels International Inc /De)
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“SEC” or “Commission”), the Company shall (i) prepare and, not later than 150 days following the date of the original issuance of the Securities (the date of such filing being referred to herein as the “Filing Date”), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (the Indenture, “Exchange Securities”) that are substantially identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Filing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer as set forth in the following paragraph. The Exchange Securities will be issued under the same indenture as the Securities (the “Indenture”) to be dated as of June 12, 2009, between the Company and the Trustee or such other bank or trust company that is mailed reasonably satisfactory to the Holders Initial Purchasers, as trustee (the “Trustee”), with such period being called modifications as may be appropriate to account for the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the coverrequired, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotmentOffer, is required to deliver a prospectus containing substantially the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that set forth (i) in Annex A hereto on the case where cover of such prospectus, (ii) in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser(iii) in Annex C hereto in the “Plan of Distribution” section of such prospectus, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available in each case subject to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifchanges, upon consummation of the Registered Exchange Offeradditions, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request deletions or moving of such Initial Purchaser, in exchange (disclosure required by the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 60 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the HoldersHolders of Securities and the Initial Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally mailed to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities and Exchange Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of 210 days from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (i) in relation to a Shelf Registration Statement, solely for the purpose of filing of a post-effective amendment to such Shelf Registration Statement for such time as is reasonably necessary to incorporate annual audited financial information, quarterly financial information or other information required by the Commission with respect to the Company (a “Shelf Suspension Period”) where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders of the Securities to use the related prospectus and the Company is using its commercially reasonable best efforts to have such post-effective amendment declared effective or (ii) for up to 2 periods (each such period pursuant to this clause (ii) a “Suspension Period”) of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to maturity of the Securities), but no more than an aggregate of 75 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue the closing of the Initial SecuritiesExchange Offer. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture"Exchange Securities"), that are identical in all material respects to the Initial Securities Securities, except that the liquidated damages provisions and registered under the transfer restrictions relating to the Securities Act will be eliminated, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the Indenture or an indenture (the "Exchange Securities Indenture") among the Issuers and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the liquidated damages provisions and the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of any of the Company Issuers (within the meaning of the Securities Act) or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchasers and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, and in the absence of an applicable exemption therefrom, (i) each Holder (which may include the Initial Purchasers) that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required may be deemed to be an "underwriter" within the meaning of the Securities Act and must therefore, deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Issuers shall use their reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange (it being understood that all questions as to validity, form, eligibility (including time of receipt) and acceptance of Securities tendered for exchange shall be determined by the Issuers in their sole discretion, which determination shall be final and binding);
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of any of the Securities ActIssuers or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Note Registration Rights Agreement (Jones Apparel Group Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Company and the Guarantors shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 100 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Securities (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "EXCHANGE SECURITIES") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 240 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 270 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered Exchange Offer"EXCHANGE SECURITIES INDENTURE") between the Company, the Company (i) will be entitled Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEEXCHANGE SECURITIES TRUSTEE"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate (as defined in Rule 405 under the Securities Act) of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and business, (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and (e) if it is not prohibited by any law or policy of the Commission from participating a person in the Registered Exchange OfferUnited Kingdom, that its ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business) and to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus (or any comparable section thereof) in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Securities held by such Holder (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "PRIVATE EXCHANGE SECURITIES") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (which letter of transmittal shall also contain a representation that such Holder, if it is a person in the United Kingdom, that its ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business) and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Willis Corroon Group LTD)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i)(A) prepare and, and (B) not later than 270 60 days (or, if the Issue Date (as defined herein) shall fall in January 2002, such 270th number of days, not less than 60, as shall equal the number of days between the Issue Date and the third business day being a "FILING DEADLINE"following the day on which the Company files with the Commission its Annual Report on Form 10-K with respect to its preceding fiscal year) after following the date on which the Initial Purchasers purchase Purchaser gives written notice to the Initial Securities Company to commence a registration pursuant to the Purchase Securities Act as contemplated by this Agreement (the date on which such notice is given, the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), the "Registered Exchange Offer") who are not prohibited by any applicable law or policy of interpretations thereof by the Commission Commission's staff from participating in the Registered Exchange Offer, Offer to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities Securities, except for the transfer restrictions and registered under registration rights relating to the Securities Act Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If ; provided that the Company commences the Registered Exchange Offer, the Company (i) will be entitled may elect to consummate close the Registered Exchange Offer 30 days after such the commencement thereof (provided that unless otherwise required by applicable law), so long as the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required . Notwithstanding the preceding sentence, the Issue Date must occur on or prior to consummate October 9, 2002 , the Registered Exchange Offer no later than 40 days after 180th day preceding the second anniversary of the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities were originally issued. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for The Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to will be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company and the Trustee or such other bank or trust company that is reasonably satisfactory to the Purchasers, as trustee (the "Exchange Securities Trustee"), such indenture to be identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial SecuritiesIndenture, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open except for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all registration rights relating to the Securities will vote and consent together on all matters (as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an described above)."affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Telecorp PCS Inc /Va/)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, substantially identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 365 days after the Closing Date (such 360th 365th day being an "EFFECTIVENESS DEADLINE"“Effectiveness Deadline”) after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Closing Date”) and (ii) will keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements or understanding with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United StatesAct. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 508, as applicable, of Regulation S-K under the Securities Act, as applicable, Act in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 120 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 120 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and substantially identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Registered Exchange Offer, such Holder will have had no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise reasonably required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Midamerican Energy Holdings Co /New/)
Registered Exchange Offer. Unless not permitted by applicable law The Company and Holdings shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the Indenture or an indenture (the "Exchange Securities Indenture") among the Company, Holdings, as a guarantor, and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or of Holdings or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, Holdings, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company and Holdings shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and Holdings that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or Holdings or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and Holdings will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Eagle Family Foods Inc)
Registered Exchange Offer. Unless Unless, because of any change in law or applicable interpretations thereof by the Commission's staff, the Company and the Note Guarantors determine in good faith after consultation with counsel that they are not permitted by applicable law to effect the Registered Exchange Offer (after the Company has complied with the ultimate paragraph of this Section 1as defined herein), the Company and the Note Guarantors shall (i) prepare and, not later than 270 75 days (such 270th day being a "FILING DEADLINE") after following the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE")Closing Date, file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Consenting Notes (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial SecuritiesConsenting Notes, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "EXCHANGE NOTES") that are identical in all material respects to the Initial Securities Consenting Notes, except for the transfer restrictions relating to the Consenting Notes and registered under the Securities Act provisions relating to liquidated damages or additional interest, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 190 days after the Closing Date and (iiiii) keep the Registered Exchange Offer Registration Statement effective open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Notes will be issued under the Company commences Amended and Restated Indenture or an indenture (the Registered Exchange Offer"EXCHANGE NOTES INDENTURE") among the Company, the Company Note Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to the Solicitation Agent, as trustee (ithe "EXCHANGE NOTES TRUSTEE"), such indenture to be identical in all material respects to the Amended and Restated Indenture, except for the transfer restrictions relating to the Consenting Notes and provisions relating to liquidated damages or additional interest (as described above). All references in this Agreement to "prospectus" shall, except where the context otherwise requires, include any prospectus (or amendment or supplement thereto) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance filed with the terms Commission pursuant to Section 6 of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")this Agreement. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Consenting Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Company (within the meaning of Rule 405 under the Securities Act) of the Company or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and business, (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes and (d) if such Holder is not prohibited by any law or policy an Exchanging Dealer (as defined below), it is not engaged in, and does not intend to engage in, a distribution of the Commission from participating in the Registered Exchange OfferNotes) and to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Note Guarantors, the Solicitation Agent and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesConsenting Notes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALER"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section (if any) and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder shall notify the Company in writing that it holds Initial Securities any Consenting Notes acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder notifies the Company in writing that it believes that it is not entitled to participate in the Registered Exchange Offer (other than because it has an understanding or arrangement with any person to participate in the distribution of the Exchange Notes) and such Holder has not received a written opinion from counsel to the Company, reasonably acceptable to such Holder to the effect that such Holder is legally permitted to participate in the Registered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to Notes in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Consenting Notes held by such Holder (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "PRIVATE EXCHANGE NOTES") that are identical in all material respects to the Initial Securities (Exchange Notes, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Notes and provisions relating to liquidated damages and additional interest. The Initial SecuritiesPrivate Exchange Notes will be issued under the same indenture as the Exchange Notes, and, if permitted under the policies established at such time by the CUSIP Service Bureau of Standard & Poor's Corporation, the Exchange Securities and Company shall use commercially reasonable efforts to cause the Private Exchange Securities are herein collectively called Notes to bear the "SECURITIES"same CUSIP number as the Exchange Notes. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Consenting Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly Consenting Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities Consenting Notes so accepted for exchange; and
(zc) cause the Trustee or the Exchange Notes Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities Notes or Private Exchange SecuritiesNotes, as the case may be, equal in principal amount at maturity to the Initial Securities Consenting Notes of such Holder so accepted for exchange. The Company and the Note Guarantors shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons (including Exchanging Dealers) subject to the prospectus delivery requirements of the Securities Act for 180 days after the consummation of the Registered Exchange Offer (such 180 days, the "APPLICABLE PERIOD"). Subject to limited exceptions, the Amended and Restated Indenture will or the Exchange Notes Indenture, as the case may be, shall provide that the Consenting Notes, the Exchange Securities will not be subject to Notes, the transfer restrictions set forth in Non-Consenting Notes and the Indenture and that all the Securities will Private Exchange Notes shall vote and consent together on all matters as one class and that none of the Securities Consenting Notes, the Exchange Notes, the Non-Consenting Notes or the Private Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security Note and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Consenting Notes surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesConsenting Notes, from the date of original issue of the Initial SecuritiesClosing Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Note Guarantors in writing (which may be contained in the applicable letter of transmittal) that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities Consenting Notes or the Exchange Securities Notes within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in affiliate (within the meaning of Rule 405 of under the Securities Act, ) of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, applicable and (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesNotes during the Applicable Period. Notwithstanding any other provisions hereof, the Company and the Note Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Uniplast Industries Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 45 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") and that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 165 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 2 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
2 3 (a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Energy Corp of America)
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“SEC” or “Commission”), the Company shall (i) prepare and, not later than 150 days following the date of the original issuance of the Securities (the date of such filing being referred to herein as the “Filing Date”), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (the Indenture, “Exchange Securities”) that are substantially identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Filing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer as set forth in the following paragraph. The Exchange Securities will be issued under the same indenture as the Securities (the “Indenture”) to be dated as of August 16, 2010, between the Company, the Subsidiary Guarantors and the Trustee or such other bank or trust company that is mailed reasonably satisfactory to the Holders Initial Purchasers, as trustee (the “Trustee”), with such period being called modifications as may be appropriate to account for the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the coverrequired, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotmentOffer, is required to deliver a prospectus containing substantially the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that set forth (i) in Annex A hereto on the case where cover of such prospectus, (ii) in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser(iii) in Annex C hereto in the “Plan of Distribution” section of such prospectus, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available in each case subject to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifchanges, upon consummation of the Registered Exchange Offeradditions, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request deletions or moving of such Initial Purchaser, in exchange (disclosure required by the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 60 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the HoldersHolders of Securities and the Initial Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally mailed to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities and Exchange Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of 210 days from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (i) in relation to a Shelf Registration Statement, solely for the purpose of filing of a post-effective amendment to such Shelf Registration Statement for such time as is reasonably necessary to incorporate annual audited financial information, quarterly financial information or other information required by the Commission with respect to the Company (a “Shelf Suspension Period”) where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders of the Securities to use the related prospectus and the Company is using its commercially reasonable best efforts to have such post-effective amendment declared effective or (ii) for up to 2 periods (each such period pursuant to this clause (ii) a “Suspension Period”) of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to maturity of the Securities), but no more than an aggregate of 75 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue issuance of the Initial Securities. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Mxxxxx Sxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) use their reasonable best efforts to prepare and, not later than 270 120 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Issue Date”), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities Notes and registered under are unconditionally guaranteed by the Securities Act Guarantors (the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall , except that the Exchange Securities will not contain terms with respect to transfer restrictions, (ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 255 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the “Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"Period”). Following The Exchange Securities will be issued under the declaration of Indenture or an indenture (the “Exchange Securities Indenture”) between the Company, the Guarantors party thereto and the Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the “Exchange Securities Trustee”), such indenture to be identical in all material respects to the Indenture, except with respect to the transfer restrictions relating to the Securities (as described above). Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's business Holder’s business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Each Issuer, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALER"), “Exchanging Dealer”) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "“Exchange Offer Procedures" section ” and the "“Purpose of the Exchange Offer" section” sections of such prospectus, and (c) in Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities ActAct and the Exchange Act (“Regulation S-K”), as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities (as defined) that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Exchanging Dealers, and the Issuers shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the “Private Exchange”), a like aggregate principal amount of debt securities of the Company issued under and the Indenture and Guarantors that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”), except with respect to the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange Offer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of any of the Company or Issuers or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, each of the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Lin Television Corp)
Registered Exchange Offer. Unless (a) Promptly (and in any event not permitted by applicable law more than 45 days) following the closing date of the sale of the Notes (after the Company has complied with the ultimate paragraph of this Section 1"Closing Date"), the Company and the Guarantor shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy holders of the Commission from participating in the Registered Exchange Offer, Registrable Notes to issue and deliver to such Holdersholders, in exchange for the Initial SecuritiesRegistrable Notes, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act Registrable Notes (the "EXCHANGE SECURITIESExchange Notes"). The Company , shall use its reasonable their best efforts to (i) cause such Exchange Offer Registration Statement registration statement to become effective under the Securities Act within 360 no later than 120 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep and, upon the effectiveness of that registration statement, shall commence the Registered Exchange Offer Registration Statement effective and shall cause the same to remain open for such period of time to be determined by the Company (but not less than 30 nor more than 60 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) ), and (ii) will to be conducted in accordance with such procedures, as may be required to consummate by the Registered applicable provisions of the Securities Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective Act of 1934, as amended (such 40th day being the "CONSUMMATION DEADLINEExchange Act"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder holder of Transfer Restricted Securities Registrable Notes electing to exchange the Initial Securities Registrable Notes for Exchange Securities Notes (assuming that such Holder holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities Notes in the ordinary course of such Xxxxxxholder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferNotes) to trade such Registrable Notes for Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act, subject as to a Broker-Dealer to the provisions of Section 1(b) hereof, or the Exchange Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff Each holder of Section 5 of the Securities Act, Registrable Notes who participates in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser who desires to receive Exchange Notes that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer any limitations or restrictions set forth in the Indenture and that all on resale under the Securities Act will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent in writing to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes received by such Holder it will be acquired in the ordinary course of its business, (ii) that at the time of consummation of the Exchange Offer such Holder holder of Registrable Notes will have no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or Exchange Notes, and that such holder of the Exchange Securities Registrable Notes is not an affiliate of the Company within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution . Upon consummation of the Exchange Securities and Offer in accordance with this Section 1, the Company shall have no further obligation to register Registrable Notes pursuant to Section 2 of this Agreement.
(vb) if such Holder is The Company shall indicate in a broker"Plan of Distribution" section contained in the final prospectus constituting a part of the registration statement relating to the Registered Exchange Offer that any broker or dealer registered under the Exchange Act (each a "Broker-dealer, Dealer") who holds Registrable Notes that it will receive Exchange Securities were acquired for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will (other than Registrable Notes acquired directly from the Company), may exchange such Registrable Notes for Exchange Notes pursuant to the Registered Exchange Offer; however, such Broker-Dealer may be required to acknowledge that it will deemed an "underwriter" within the meaning of the Securities Act and, therefore, must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light resales of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change Exchange Notes received by it in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as which prospectus delivery requirement may be requested satisfied by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared delivery by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.such
Appears in 1 contract
Samples: Registration Rights Agreement (National Energy Group Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 120 days (such 270th 120th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") ), a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereofbelow), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities Securities, except for the transfer restrictions relating to the Initial Securities, and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 240 days after the Closing Date (such 360th 240th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required use its reasonable best efforts to consummate the Registered Exchange Offer no later than 40 days after the date on which that the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (a) to make such exchange (assuming that such Holder (i) is not an affiliate of the Company within the meaning of the Securities Act, (ii) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and business, (iii) has no arrangements or understandings with any person anx xxxxon to participate in the distribution of the Exchange Securities and (iv) is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) and (b) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Private Exchange Securities will be issued under the Indenture and the Company shall use its reasonable best efforts to cause the Private Exchange Securities to bear the same CUSIP number as the Exchange Securities. The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (PPL Energy Supply LLC)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 90 days (such 270th 90th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 180 days after the Closing Date (such 360th 180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided PROVIDED that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and at the time of commencement of the Registered Exchange Offer has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after following the consummation effective date of the Registered Exchange OfferOffer Registration Statement. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail mail, or cause to be mailed, to each Holder entitled to participate in the Registered Exchange Offer a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents, PROVIDED that the Company shall only be required to mail, or cause to mailed, such prospectus to Holders of which the Company is aware after due inquiry;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange, if any;
(y) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Registered Exchange Offer, such Holder will have had no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," ", as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Winfred Berg Licensco Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not ------------------------- later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission a registration statement on Form S-1 or ---------- Form S-4, if the use of such form is then available (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACTExchange Offer -------------- Registration Statement"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the ---------------------- Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in ------------------------- exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture, "Exchange Notes") that are identical in all material respects -------------- to the Initial Securities and registered under Notes, except for the Securities Act transfer restrictions relating to the Notes, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within no later than 300 days after the Issue Date and the Registered Exchange Offer to be consummated no later than 360 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange -------- Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Notes will be entitled issued under the ------------------------- Indenture or an indenture (the "Exchange Notes Indenture") between the Issuers ------------------------ and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchaser, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Notes Trustee"), such indenture ---------------------- to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Notes (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes or Private Exchange Notes (assuming that such Holder (a) is not an affiliate of the Company within Issuers or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) is not an Initial Purchaser holding Notes that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesNotes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing ----------------- substantially the information set forth in (a) Annex Exhibit A hereto on the cover, (b) Annex in Exhibit B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) Annex in Exhibit C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial Securities any Notes acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to Notes in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Notes held by such Holder (the "PRIVATE EXCHANGEPrivate Exchange") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount ---------------- of debt securities of the Company issued under Issuers (the Indenture and "Private Exchange Notes") that are ---------------------- identical in all material respects to the Initial Securities (Exchange Notes, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Notes. The Initial Securities, Private Exchange Notes will be issued under the same indenture as the Exchange Securities Notes, and the Issuers shall use their reasonable best efforts to cause the Private Exchange Securities are herein collectively called Notes to bear the "SECURITIES"same CUSIP number as the Exchange Notes. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities Notes so accepted for exchange; and
(zc) cause the Trustee or the Exchange Notes Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities Notes or Private Exchange SecuritiesNotes, as the case may be, equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that (i) in the case where such -------- prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Notes Indenture, as the case may be, shall provide that the Notes, the Exchange Securities will not be subject to Notes and the transfer restrictions set forth in the Indenture and that all the Securities will Private Exchange Notes shall vote and consent together on all matters as one class and that none of the Securities Notes, the Exchange Notes or the Private Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security Note and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Notes surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesNotes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer Offer, (i) any Exchange Securities Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities Notes or the Exchange Securities Notes within the meaning of the Securities Act, and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Securities ActIssuers or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Mediacom Capital Corp)
Registered Exchange Offer. Unless not permitted by applicable law Following the date of original issuance of the Notes (after the Company has complied with the ultimate paragraph of this Section 1“Issue Date”), the Company Issuers shall use their reasonable best efforts to prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an Form S-4 (or, if applicable, on another appropriate form form) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture, “Exchange Notes”) that are identical in all material respects to the Initial Securities Notes, except that the Exchange Notes will not be subject to restrictions on transfer or to any increase in annual interest for failure to comply with this Agreement and registered under thereafter cause the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer completed no later than 40 180 days after the date Issue Date. The Exchange Notes will be issued under the Indenture or an indenture (the “Exchange Indenture”) among the Issuers and the Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the “Exchange Trustee”), such indenture to be identical to the Indenture, except that such indenture shall not contain any provisions relating to restrictions on which transfer with respect to the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Notes or to any increase in annual interest for failure to comply with this Agreement. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer Offer, to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of either of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Notes that have the status of an unsold allotment remaining from the initial distribution of the Notes, (c) acquires the Exchange Securities Notes in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesNotes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALER"“Exchanging Dealer”), is required may be deemed to be an “underwriter”, within the meaning of the Securities Act and must deliver a prospectus containing meeting the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose requirements of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus Securities Act in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. The Registered Exchange Offer shall not be subject to any conditions, other than that the Registered Exchange Offer does not violate any applicable law or applicable interpretations of the staff of the Commission. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuers shall:
(xa) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities Notes so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder Exchange Notes equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 180 days after the consummation of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). The Indenture will or the Exchange Indenture, as the case may be, shall provide that the Notes and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will Notes shall vote and consent together on all matters as one class and that none of the Securities Notes or the Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Note surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesNotes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes to be received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act) of the Exchange Notes, (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of either of the Company or if it is an affiliate, such Holder will comply with the registration Issuers and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealeran Exchange Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if then such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with a sale of any resale of Exchange Notes received by such Holder pursuant to the Registered Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any the Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any the Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, at any time during the Exchange Offer Registration Period, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Universal City Florida Holding Co. I)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities Securities, except for the transfer restrictions and registered under registration rights relating to the Securities Act Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the registration provisions of the Securities Act and without material restrictions under the registration provisions of the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Banctec Inc)
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“SEC” or “Commission”), the Company shall (i) prepare and, not later than 150 days following the date of the original issuance of the Securities (the date of such filing being referred to herein as the “Filing Date”), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (the Indenture, “Exchange Securities”) that are substantially identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Filing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer as set forth in the following paragraph. The Exchange Securities will be issued under the same indenture as the Securities (the “Indenture”) to be dated as of February 27, 2012, among the Company, the Subsidiary Guarantors and the Trustee or such other bank or trust company that is mailed reasonably satisfactory to the Holders Initial Purchasers, as trustee (the “Trustee”), with such period being called modifications as may be appropriate to account for the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the coverrequired, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotmentOffer, is required to deliver a prospectus containing substantially the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that set forth (i) in Annex A hereto on the case where cover of such prospectus, (ii) in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser(iii) in Annex C hereto in the “Plan of Distribution” section of such prospectus, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available in each case subject to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifchanges, upon consummation of the Registered Exchange Offeradditions, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request deletions or moving of such Initial Purchaser, in exchange (disclosure required by the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company shall:
(a) mail deliver to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 60 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed delivered to the HoldersHolders of Securities and the Initial Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally delivered to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities and Exchange Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of 210 days from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (i) in relation to a Shelf Registration Statement, solely for the purpose of filing of a post-effective amendment to such Shelf Registration Statement for such time as is reasonably necessary to incorporate annual audited financial information, quarterly financial information or other information required by the Commission with respect to the Company (a “Shelf Suspension Period”) where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders of the Securities to use the related prospectus and the Company is using its commercially reasonable best efforts to have such post-effective amendment declared effective or (ii) for up to 2 periods (each such period pursuant to this clause (ii) a “Suspension Period”) of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to maturity of the Securities), but no more than an aggregate of 75 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue issuance of the Initial Securities. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 45 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Notes") that are identical in all material respects to the Initial Securities and registered under Notes, except for the Securities Act transfer restrictions relating to the Notes, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 165 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 195 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Notes will be issued under the Indenture or an indenture (the "Exchange Notes Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Notes Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Notes (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesNotes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer Offer. If, prior to the consummation of the Registered Exchange Offer, any Holder holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Registered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Notes in the Registered Exchange Offer, issue and (ii) an Initial Purchaser that elects deliver to sell Securities (as defined below) acquired any such Holder, in exchange for Initial Securities constituting any portion the Notes held by such Holder (the "Private Exchange"), a like aggregate principal amount of an unsold allotmentdebt securities of the Company (the "Private Exchange Notes") that are identical in all material respects to the Exchange Notes, is required except for the transfer restrictions relating to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K such Private Exchange Notes. The Private Exchange Notes will be issued under the Securities Actsame indenture as the Exchange Notes, as applicable, in connection with such sale. The and the Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and cause the Private Exchange Securities are herein collectively called Notes to bear the "SECURITIES"same CUSIP number as the Exchange Notes. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities Notes so accepted for exchange; and
(zc) cause the Trustee or the Exchange Notes Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities Notes or Private Exchange SecuritiesNotes, as the case may be, equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 195 days and the date on which all Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Notes Indenture, as the case may be, shall provide that the Notes, the Exchange Securities will not be subject to Notes and the transfer restrictions set forth in the Indenture and that all the Securities will Private Exchange Notes shall vote and consent together on all matters as one class and that none of the Securities Notes, the Exchange Notes or the Private Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security Note and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Notes surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesNotes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities Notes or the Exchange Securities Notes within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure covenants that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies will comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does will not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not will not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Laroche Industries Inc)
Registered Exchange Offer. Unless not permitted Resales of New Securities by applicable law Exchanging Dealers; Private Exchange.
(after a) The Company and the Company has complied with the ultimate paragraph of this Section 1), the Company Guarantor shall prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE")Closing Date, shall file with the Securities and Commission the Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), Offer Registration Statement with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company and the Guarantor shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 150 days after of the Closing Date Date.
(such 360th day being an "EFFECTIVENESS DEADLINE"b) and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantor shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange New Securities (assuming that such Holder is not an affiliate of the Company or the Guarantor within the meaning of the Securities Act, acquires the Exchange New Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferNew Securities) to trade such Exchange New Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and .
(c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company and the Guarantor shall:
(ai) mail to each Holder a copy of the prospectus Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(bii) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) and not more than 45 days after the date notice thereof is mailed to the HoldersHolders (or longer if required by applicable law);
(ciii) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;; and
(iv) comply in all respects with all applicable laws.
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company and the Guarantor shall:
(xi) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(ziii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, New Securities equal in principal amount to the Initial Securities of such Holder so accepted for exchange. .
(e) The Indenture will provide that Purchasers, the Exchange Securities will not be subject Company and the Guarantor acknowledge that, pursuant to interpretations by the transfer restrictions set forth Commission's staff of Section 5 of the Act, and in the Indenture and that all the absence of an applicable exemption therefrom, each Exchanging Dealer is required to deliver a Prospectus in connection with a sale of any New Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued received by such Exchanging Dealer pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange for Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securitiesactivities. Notwithstanding any other provisions hereofAccordingly, the Company will ensure that and the Guarantor shall:
(i) any include the information set forth in Annex A hereto on the cover of the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement in a section setting forth details of the Exchange Offer, and any amendment thereto and any prospectus in Annex C hereto in the underwriting or plan of distribution section of the Prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary the information set forth in order to make the statements therein, Annex D hereto in the light Letter of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel Transmittal delivered pursuant to the Company raises a substantial question Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act during the Exchange Offer Registration Period for delivery by Exchanging Dealers in connection with sales of New Securities received pursuant to the Registered Exchange Offer, as contemplated by Section 4(h) below.
(f) In the event that any Purchaser determines that it is not eligible to whether participate in the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Purchaser, the Company will and the Guarantor shall issue and deliver to such Purchaser or the party purchasing New Securities registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Purchaser, in exchange for such Securities, a like principal amount of New Securities. The Company and the Guarantor shall seek a no-action letter or other favorable decision from to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such New Securities as for New Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Notes") that are identical in all material respects to the Initial Securities and registered under Notes (except that the Securities Act Exchange Notes will not contain terms with respect to transfer restrictions), (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable their respective best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 240 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 270 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Notes will be entitled issued under the Indenture or an indenture (the "Exchange Notes Indenture") between the Issuers and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Initial Purchaser, as trustee (the "Exchange Offer 30 days after Notes Trustee"), such commencement indenture to be identical in all material respects to the Indenture (provided except that the Company has accepted all the Initial Securities theretofore validly tendered in accordance Exchange Notes Indenture will not contain terms with the terms of the Registered Exchange Offerrespect to transfer restrictions) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Company within the meaning any of the Securities ActIssuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not the Initial Purchaser holding Notes that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Notes acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities Notes (an "EXCHANGING DEALERExchanging Dealer"), ) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if the Initial Purchaser that elects to sell Securities Private Exchange Notes (as defined belowdefined) acquired in exchange for Initial Securities Notes constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("Regulation S-K"), as applicable, in connection with such a sale. The change Notes, Exchange Notes as to which clause (v) of the first paragraph of Section 2 hereof is applicable and Exchange Notes held by Participating Broker-Dealers (as defined), and the Company shall use its reasonable best efforts have no further obligations to keep the register Transfer Restricted Notes (other than Private Exchange Offer Registration Statement effective Notes and other than in respect of Exchange Notes as to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements which clause (v) of the Securities Act for such period first paragraph of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (iSection 2 hereof applies) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial Securities any Notes acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to Notes in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Notes held by such Holder (the "PRIVATE EXCHANGEPrivate Exchange") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture and "Private Exchange Notes") that are identical in all material respects to the Initial Securities Exchange Notes (except that the "PRIVATE EXCHANGE SECURITIES"Private Exchange Notes will contain terms with respect to transfer restrictions). The Initial Securities, Private Exchange Notes will be issued under the same indenture as the Exchange Securities Notes, and the Issuers shall use their reasonable best efforts to cause the Private Exchange Securities are herein collectively called Notes to bear the "SECURITIES"same CUSIP number as the Exchange Notes. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities Notes so accepted for exchange; and
(zc) cause the Trustee or the Exchange Notes Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities Notes or Private Exchange SecuritiesNotes, as the case may be, equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The Issuers shall use their respective best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Notes Indenture, as the case may be, shall provide that the Notes, the Exchange Securities will not be subject to Notes and the transfer restrictions set forth in the Indenture and that all the Securities will Private Exchange Notes shall vote and consent together on all matters as one class and that none of the Securities Notes, the Exchange Notes or the Private Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security Note and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Notes surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesNotes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities Notes or the Exchange Securities Notes within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of any of the Securities ActIssuers or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, applicable and (iv) if such Holder is not a broker-dealeran Exchanging Dealer, that it is not engaged in, and does not intend to engage in, such Holder shall comply with the distribution prospectus delivery requirements of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesAct. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Manischewitz B Co LLC)
Registered Exchange Offer. (a) Unless the Company and the Guarantors determine, upon the advice of counsel, that they are not permitted to effect a Registered Exchange Offer due to any change in law or applicable interpretations thereof by applicable law (after the Company has complied with the ultimate paragraph of this Section 1)Commission or its staff, the Company and the Guarantors shall prepare prepare, at their cost, and, not later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE")Closing Date, and shall file with the Securities and Commission the Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), Offer Registration Statement with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company and the Guarantors shall use its their respective reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 not later than 270 days after of the Closing Date Date.
(such 360th day being an "EFFECTIVENESS DEADLINE"b) and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall as promptly as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange New Securities (assuming that such Holder is (i) not an affiliate Affiliate of the Company within the meaning of the Securities ActCompany, (ii) acquires the Exchange New Securities in the ordinary course of such XxxxxxHolder's business and business, (iii) has no arrangements or understandings with any person to participate in the distribution of the Exchange New Securities, (iv) is not an Initial Purchaser holding the Securities that have the status of an unsold allotment remaining from an initial distribution of the Securities and (v) is not otherwise prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange New Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the provided, that Broker-Dealers receiving New Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer will have a prospectus delivery requirement with respect to resales of such New Securities. Notwithstanding anything contained herein, the Company and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is the Guarantors shall not be required to deliver make a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Registered Exchange Offer Registration Statement effective in any province or territory of Canada or to accept Securities surrendered by residents of Canada in the Registered Exchange Offer unless the distribution of New Securities pursuant to such offer can be effected pursuant to exemptions from the registration and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the applicable securities laws of such province or territory and, as a condition to the sale of their Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial such Holders of Securities acquired by it as part of its initial distribution, in Canada will be required to make certain representations to the Company, simultaneously with including a representation that they are entitled under the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request applicable securities laws of such Initial Purchaser, in exchange province or territory to acquire the New Securities without the benefit of a prospectus qualified under such securities laws.
(the "PRIVATE EXCHANGE"c) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company and the Guarantors shall:
(ai) mail mail, or cause to be mailed, to each Holder a copy of the prospectus Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents, and in the case of Holders in Canada, any "wrapped" version thereof used in connection with the private placement of the New Securities;
(bii) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) and not more than 45 days after the date notice thereof is mailed to the HoldersHolders (or, in each case, longer if required by applicable law);
(ciii) use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the Securities Act, supplemented and amended as required, under the Securities Act to ensure that it is available for sales of New Securities by Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of Manhattan in New YorkYork City, which may be the Depository Trust Company, Trustee, the New Securities Trustee or an affiliate Affiliate of the Trusteeany of them;
(dv) permit Holders to withdraw tendered Securities at any time prior to the close of business5:00 p.m., New York time, on the last business day Business Day on which the Registered Exchange Offer shall remain is open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company and the Guarantors are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted by Shearman & Sterling (dated July 2, 1993); and (B) including a representation that the Company and the Guarantors have not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that, to the best of the Company's and the Guarantors' information and belief, each Holder participating in the Registered Exchange Offer is acquiring the New Securities in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the New Securities; and
(evii) otherwise comply in all respects with all laws applicable laws. to the Registered Exchange Offer.
(d) As soon as reasonably practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company and the Guarantors shall:
(xi) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver to the Trustee for cancellation in accordance with Section 4(r) all the Initial Securities so accepted for exchange; and
(ziii) cause the New Securities Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in a principal amount of New Securities equal to the Initial principal amount of the Securities of such Holder so accepted for exchange. The Indenture will provide .
(e) Each Holder hereby acknowledges and agrees that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture any Broker-Dealer and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to such Holder using the Registered Exchange Offer and to participate in a distribution of the Private Exchange will accrue from the last interest payment date New Securities (x) can not under Commission policy as in effect on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue this Agreement rely on the position of the Initial SecuritiesCommission in Exxon Capital Holdings Corporation (pub. Each avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K or any successor provisions under the Securities Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company, the Guarantors or one of its or their Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that and the Guarantors that, at the time of the consummation of the Registered Exchange Offer Offer:
(i) any Exchange New Securities received by such Holder will be acquired in the ordinary course of business, ;
(ii) such Holder will is not engaged in and does not intend to engage in, and shall have no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange New Securities within the meaning of the Securities Act, ;
(iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, Affiliate of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, any Guarantor; and
(iv) if such Holder is not an Exchanging Dealer, then such Holder will deliver a broker-dealer, Prospectus in connection with a sale of any Securities received by such Holder pursuant to the Registered Exchange Offer.
(f) If any Initial Purchaser determines that it is not engaged in, and does not intend eligible to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account sparticipate in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek and the Guarantors shall issue and deliver to such Initial Purchaser or the person purchasing New Securities registered under a no-action letter or other favorable decision Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such Securities, a like principal amount of New Securities. The Company and the Commission allowing Guarantors shall use their respective reasonable best efforts to cause the Company CUSIP Service Bureau to consummate issue the same CUSIP number for such New Securities as for New Securities issued pursuant to the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) use their reasonable best efforts to prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities Notes and registered under are unconditionally guaranteed by the Securities Act Guarantors (the "EXCHANGE SECURITIESExchange Securities"). The Company shall , except that the Exchange Securities will not contain terms with respect to transfer restrictions, (ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 120 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 165 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Senior Notes Indenture (the Registered "Indenture") or an indenture (the "Exchange OfferSecurities Indenture") between the Company, the Company Guarantors party thereto and the Senior Notes Trustee (ithe "Trustee") will be entitled or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except with respect to the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Each Issuer, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), ) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" sectionsections of such prospectus, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("Regulation S-K"), as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities (as defined) that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Exchanging Dealers, and the Issuers shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under and the Indenture and Guarantors that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange Securities"), except with respect to the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange Offer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of any of the Company or Issuers or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, each of the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Lin Holdings Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the The Company has complied with the ultimate paragraph of this Section 1)shall, the Company shall at its own cost, prepare andand use its commercially reasonable efforts to, not later than 270 90 days after (such 270th or if the 90th day being is not a "FILING DEADLINE"business day, the first business day thereafter) after the date on which the Initial Purchasers purchase of original issue of the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Issue Date”), file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company issued under the Indenture, Indenture and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act (the "EXCHANGE SECURITIES")Act. The Company shall use its commercially reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 180 days (or if the 180th day is not a business day, the first business day thereafter) after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") of the Initial Securities and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled to consummate close the Registered Exchange Offer 30 20 business days after such the commencement (thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that if it elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 90 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company The Issuers shall use their reasonable best efforts to prepare and, not later than 270 180 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an Form S-4 (or, if applicable, on another appropriate form form) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act Issuers (the "EXCHANGE SECURITIESExchange Notes"). The Company shall use its reasonable best efforts ) that are identical to (i) the Notes, except that the Exchange Notes will not be subject to restrictions on transfer or to any increase in annual interest for failure to comply with this Agreement and thereafter cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 240 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") Issue Date, and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer completed no later than 40 270 days after the date Issue Date. The Exchange Notes will be issued under the Indenture or an indenture (the "Exchange Indenture") among the Issuers and the Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the "Exchange Trustee"), such indenture to be identical to the Indenture, except that such indenture shall not contain any provisions relating to restrictions on which transfer with respect to the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Notes or to any increase in annual interest for failure to comply with this Agreement. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer Offer, to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of either of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Notes that have the status of an unsold allotment remaining from the initial distribution of the Notes, (c) acquires the Exchange Securities Notes in the ordinary course of such Xxxxxx's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesNotes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALERExchanging Dealer"), is required may be deemed to be an "underwriter", within the meaning of the Securities Act and must deliver a prospectus containing meeting the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose requirements of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus Securities Act in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. The Registered Exchange Offer shall not be subject to any conditions, other than that the Registered Exchange Offer does not violate any applicable law or applicable interpretations of the staff of the Commission. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuers shall:
(xa) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities Notes so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder Exchange Notes equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Notes; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Notes for a period of not less than 180 days after the consummation of the Registered Exchange Offer (such period being called the "Exchange Offer Registration Period"). The Indenture will or the Exchange Indenture, as the case may be, shall provide that the Notes and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will Notes shall vote and consent together on all matters as one class and that none of the Securities Notes or the Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Note surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesNotes, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Notes to be received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act) of the Exchange Notes, (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of either of the Company or if it is an affiliate, such Holder will comply with the registration Issuers and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealeran Exchange Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if then such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with a sale of any resale of Exchange Notes received by such Holder pursuant to the Registered Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any the Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any the Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, at any time during the Exchange Offer Registration Period, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Universal City Development Partners LTD)
Registered Exchange Offer. Unless not permitted by applicable law (after Upon the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice occurrence of the Registered Exchange Offer is mailed in accordance with the Registration Rights Agreement, the Issuer or the Company, as applicable, will issue, under the Third Supplemental Indenture, and, upon receipt of an authentication order in accordance with the Indenture, the Trustee will authenticate one or more Global Notes in an aggregate principal amount equal to the Holders (such period being called principal amount of the "EXCHANGE OFFER REGISTRATION PERIOD"). If beneficial interests in the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate Restricted Global Notes accepted for exchange in the Registered Exchange Offer 30 days after such commencement (provided by Persons that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities certify in the ordinary course applicable letter of such Xxxxxx's business and has no arrangements with any person to participate transmittal that (A) they are not Broker-Dealers, (B) they are not participating in the a distribution of the Exchange Securities and is (C) they are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities affiliates (as defined belowin Rule 144) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 Issuer or 508 of Regulation S-K under the Securities ActCompany, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after Following the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may will be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, treated as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, same series as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchangeoriginal Notes. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection Concurrently with the issuance of such decisionExchange Securities, including without limitation the Trustee will cause the aggregate principal amount of the Restricted Global Notes to be reduced accordingly, and the Issuer or the Company, as applicable, will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the appropriate principal amount. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (i“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. THIS SECURITY (OR ITS PREDECESSOR) participating in telephonic conferences with the CommissionWAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER STATE SECURITIES LAW. THIS SECURITY REPRESENTED BY THIS GLOBAL CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (B) PURSUANT TO AN APPLICABLE EXEMPTION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, AND UNLESS IN ACCORDANCE WITH THE INDENTURE REFERRED TO HEREINAFTER, COPIES OF WHICH ARE AVAILABLE AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF THE SECURITIES REPRESENTED HEREBY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH RULE MAY HEREAFTER BE AMENDED FROM TIME TO TIME, “RULE 144A”). IN ADDITION, ANY SUCH TRANSFER OR OTHER DISPOSITION IS SUBJECT TO THE CONDITIONS CONTAINED IN THE PURCHASE AGREEMENT. A COPY OF SUCH CONDITIONS WILL BE PROVIDED TO THE HOLDER HEREOF UPON REQUEST. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (iiII) delivering OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. Prior to the Commission staff an analysis prepared by counsel expiration of the Restricted Period each Regulation S Note shall bear the following additional legend: THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT. No. $ MAPLE ESCROW SUBSIDIARY, INC., a Delaware corporation (herein called the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the Company setting principal sum of DOLLARS or such other Principal Amount as shall be set forth on Schedule I hereto on May 25, 2025. Interest Payment Dates: May 25 and November 25, commencing November 25, 2018 Record Dates: May 10 and November 10 Additional provisions of this Note are set forth on the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staffother side of this Note.
Appears in 1 contract
Samples: Third Supplemental Indenture (Keurig Dr Pepper Inc.)
Registered Exchange Offer. Unless not permitted by applicable law (after Upon the Company has complied with the ultimate paragraph occurrence of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer applicable Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration StatementRights Agreement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifissue and, upon consummation receipt of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distributiona Company Order in accordance with Section 2.02, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, Trustee shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shallauthenticate:
(a) mail one or more Unrestricted Global Securities in an aggregate principal amount equal to each Holder a copy the principal amount of the prospectus forming part beneficial interests in the Restricted Global Securities tendered for acceptance by Persons that certify in the applicable Letters of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days Transmittal (or longervia the Depositary’s bookentry system), if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattanamong other things, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received to be acquired by such Holder Persons will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate they are not participating in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part they are not affiliates (as defined in Rule 144) of any Exchange Offer Registration Statementthe Issuers, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary accepted for exchange in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted Offer; and
(b) Unrestricted Definitive Securities in an aggregate principal amount equal to the principal amount of any Restricted Definitive Securities tendered for acceptance by applicable federal lawPersons that certify as specified in clause (a), the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate and accepted for exchange in the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection Concurrently with the issuance of such decisionNotes, including without limitation (i) participating the Security Registrar shall cause the aggregate principal amount of the applicable Restricted Global Securities beneficial interests in telephonic conferences with which were so accepted to be reduced accordingly, and the CommissionIssuers shall execute and the Trustee shall authenticate, (ii) delivering and deliver to the Commission staff an analysis prepared Persons designated by counsel to the Company setting forth Holders of any Restricted Definitive Securities so accepted, against surrender of such exchanged Restricted Definitive Securities so accepted, Unrestricted Definitive Securities in the legal bases, if any, upon which such counsel has concluded that appropriate principal amount. Upon the consummation of a Registered Exchange Offer should be permitted with respect to any Restricted Securities, (x) all requirements in this Article IV pertaining to Restricted Securities will apply with respect to Holders of such Restricted Securities that do not exchange their Restricted Securities for Exchange Securities; and (iiiy) diligently pursuing Exchange Securities constituting a resolution Global Security (which need not if the exchanged Note was a beneficial interest in a Restricted Global Security) or a Definitive Security (if the exchanged Note was a Restricted Definitive Security) will be favorable) by available to holders of such exchanged beneficial interests in the Commission staffRestricted Global Security or to Holders of the exchanged Restricted Definitive Securities in such Registered Exchange Offer.
Appears in 1 contract
Samples: Third Supplemental Indenture (BAKER HUGHES a GE Co LLC)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, substantially identical in all material respects to the Initial Securities and registered under the Securities Act (together, the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 365 days after the Closing Date (such 360th 365th day being an "EFFECTIVENESS DEADLINE"“Effectiveness Deadline”) after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Closing Date”) and (ii) will keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the its Initial Securities for the applicable amount and series of Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements or understanding with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United StatesAct. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for the applicable series of Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“The Exchange Offer Procedures" Offer” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 508, as applicable, of Regulation S-K under the Securities Act, as applicable, Act in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 120 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 120 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of such series of the Company issued under the Indenture and substantially identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities of each series validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities of each series so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, the Exchange Securities or the Private Exchange SecuritiesSecurities of the applicable series, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities of each series will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities of each series will vote and consent together on all matters as one class and that none of the Securities of each series will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the applicable series of Initial Securities surrendered in exchange therefor or, if no interest has been paid on the such series of Initial Securities, from the date of original issue of the applicable series of Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of commencement of the Registered Exchange Offer, such Holder will have had no arrangements or understanding with any person to participate in the distribution of the any series of Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the any series of Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities of the applicable series for its own account in exchange for the Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise reasonably required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Berkshire Hathaway Energy Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 150 days (such 270th 150th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act within 360 270 days after the Closing Date (such 360th 270th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 300 days after the Closing date on which the Exchange Offer Registration Statement is declared effective (such 40th 300th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall as promptly as is practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in participaxx xx the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 180-days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the HoldersHolders (it being understood that the Company may extend a Registered Exchange Offer or Private Exchange beyond the time at which it is scheduled to expire (either at the end of the originally scheduled offer period or at the end of a subsequently scheduled extension of such period), by issuing a press release announcing such extension and otherwise complying with applicable law);
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openopen (except that, in the case where the Registered Exchange Offer or Private Exchange is extended beyond the time at which it is scheduled to expire (either at the end of the originally scheduled offer period or at the end of a subsequently scheduled extension of such period), those Securities that are validly tendered and not withdrawn pursuant to such Registered Exchange Offer or Private Exchange, as the case may be, as of such time may be accepted for exchange and may not subsequently be withdrawn by the tendering Holders); and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. Notwithstanding the foregoing, it is understood that, in the case where the Registered Exchange Offer or Private Exchange is extended beyond the time at which it is scheduled to expire (either at the end of the originally scheduled offer period or at the end of a subsequently scheduled extension of such period), those Securities that are validly tendered and not withdrawn pursuant to such Registered Exchange Offer or Private Exchange, as the case may be, as of such time may be accepted for exchange and may not subsequently be withdrawn by the tendering Holders. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that that, at the time of the consummation of the Registered Exchange Offer such Holder's tendered Securities are accepted for exchange, (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other commercially reasonable actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (On Semiconductor Corp)
Registered Exchange Offer. Unless not permitted doing so would be prohibited by applicable law (after law, rules, regulations or policy of the Company has complied with the ultimate paragraph of this Section 1)Commission, the Company shall (i) prepare and, not later than 270 205 days (such 270th day being a "FILING DEADLINE") after following the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement hereof (the "CLOSING DATEClosing Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (as amended or supplemented from time to time, the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), the "Registered Exchange Offer") who are not prohibited by any law applicable law, rules, regulations or policy of the Commission from participating in the Registered Exchange Offer, Offer to issue and deliver to such Holders, in exchange for the Initial SecuritiesSecurities held by such Holders, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities, except for the transfer restrictions relating to the Securities and registered under the Securities Act provisions related to the matters described in Section 3 hereof, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 295 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 325 days after the Closing Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Purchasers, as trustee (the "Exchange Securities theretofore validly tendered Trustee"), such indenture to be identical in accordance with all material respects to the terms of Indenture, except for the Registered Exchange Offertransfer restrictions relating to the Securities (as described above) and (ii) will be required the provisions related to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")matters described in Section 3 hereof. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law applicable law, rules, regulations or policy of the Commission from participating in the Registered Exchange Offer) and to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act (it being understood that the requirement that an Exchanging Dealer or Initial Purchaser deliver the prospectus contained in the Exchange Offer Registration Statement in connection with the sale of Exchange Securities shall not result in such Exchange Securities being not "freely transferable") and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and sections of such prospectus that set forth the "Purpose details of the Exchange Offer" section, exchange offer procedures and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; provided, that the Company shall only be required to mail such prospectus to Holders of which the Company is aware after due inquiry;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable Promptly after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all Exchanging Dealers subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that such period shall not exceed 180 days. The Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of the Securities or the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesClosing Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Select Medical Holdings Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1)law, the Company and the Guarantors shall prepare and, not later than 270 75 days (such 270th 75th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company and the Guarantors shall use its reasonable their best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 180 days after the Closing Date (such 360th 180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences and the Guarantors commence the Registered Exchange Offer, the Company and the Guarantors (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges and the Guarantors acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items Item 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company and the Guarantors shall use its their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company and the Guarantors shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 90 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including with respect to the Guarantees thereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company and the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company and the Guarantors shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law (after a) The Issuer and the Company has complied with the ultimate paragraph of this Section 1), the Company Subsidiary Guarantors shall prepare and, not nut later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEFiling Date")) 270 days following the date of the Indenture, shall file with the Securities and Commission the Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), Offer Registration Statement with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company Issuer and the Subsidiary Guarantors shall use its reasonable their best efforts to (i) cause such the Exchange Offer Registration Statement to become be declared effective under the Securities Act within 360 330 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after of the date notice of the Registered Exchange Offer is mailed to Indenture. The Issuer and the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled Subsidiary Guarantors shall use their best efforts to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 within 360 days after the date on which of the Exchange Offer Registration Statement is declared effective Indenture.
(such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuer and the Subsidiary Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate Affiliate of the Company within the meaning of the Securities ActIssuer, acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and business, has no arrangements with any person to participate in to the distribution of the Exchange Securities Notes and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and .
(c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuer and the Subsidiary Guarantors shall:
(ai) mail Mail to each Holder a copy of the prospectus Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;.
(bii) keep Keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) 20 Business Days after the date notice thereof is mailed to the Holders;Holders (or longer if required by applicable law).
(ciii) utilize Subject to Section 5(k), use its best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required under the Act to ensure that it is available for sales of Exchange Notes by Exchanging Dealers during the Exchange Offer Registration Period. The Issuer and the Subsidiary Guarantors shall be deemed not to have used their best efforts to keep the Exchange Offer Registration Statement effective during the requisite period if, among other things, either of them voluntarily takes any action that would result in Holders of Notes covered thereby not being able to offer and sell such Notes during that period, unless (A) such action is required by applicable law; or (B) such action is taken by the Issuer and the Subsidiary Guarantors in good faith and for valid business reasons (not including avoidance of the Issuer's and the Subsidiary Guarantors's obligations hereunder), including the acquisition or divestiture of assets, so long as the Issuer and the Subsidiary Guarantors promptly thereafter comply with the requirements of Section 5(k) hereof, if applicable.
(iv) Utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of Manhattan in New YorkYork City, which may be the Trustee or an affiliate Affiliate of such depositary or the Trustee;.
(dv) permit Permit Holders to withdraw tendered Securities Notes at any time prior to the close of business, New York time, on the last business day Business Day on which the Registered Exchange Offer shall remain is open; and.
(evi) otherwise comply Prior to effectiveness of the Exchange Offer Registration Statement (if requested or required by the Commission), provide a supplemental letter to the Commission (A) stating that the Issuer is conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley and Co. Inc. (pub. axxxx. Jxxx 0, 1991); and (D) including a representation that neither the Issuer nor any of the Subsidiary Guarantors has entered into any arrangement or understanding with any person to distribute the Exchange Notes to be received in the Registered Exchange Offer and that, to the best of the Issuer's and Subsidiary Guarantors' information and belief, each Holder participating in the Registered Exchange Offer is acquiring the Exchange Notes in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the Exchange Notes within the meaning of the Act.
(vii) Comply in all respects with all applicable laws. .
(d) As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuer shall:
(xi) accept for exchange all the Securities validly Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver to the Trustee for cancellation cancelation in accordance with Section 5(s) all the Initial Securities Notes so accepted for exchange; and
(ziii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in Notes a principal amount of Exchange Notes equal to the Initial Securities principal amount of the Notes of such Holder so accepted for exchange. The Indenture will provide .
(e) Each Holder hereby acknowledges and agrees that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to such Holder using the Registered Exchange Offer and to participate in a distribution of the Private Exchange will accrue from the last interest payment date Notes (x) could not under Commission policy as in effect on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue this Agreement rely on the position of the Initial SecuritiesCommission in Morgan Stanley and Co., Inc. (pub. Each xxxxx. Xxxx 0, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from the Issuer or one of its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that Issuer that, at the time of the consummation of the Registered Exchange Offer Offer:
(i) any Exchange Securities Notes received by such Holder will be acquired in the ordinary course of business, ;
(ii) such Holder will have no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities Notes within the meaning of the Securities Act, ; and
(iii) such Holder is not neither an "affiliate," as defined in Rule 405 Affiliate of the Securities Act, Issuer nor an Affiliate of the Company or Subsidiary Guarantors, or, if it is an affiliateAffiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, .
(ivf) if such Holder is not a broker-dealer, If any Initial Purchaser determines that it is not engaged in, and does not intend eligible to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account participate in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Notes constituting any portion of an unsold allotment, at the request of such Initial Purchaser, the Company will seek Issuer shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Notes registered under a no-action letter or other favorable decision Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such Notes, a like principal amount of Exchange Notes. The Issuer shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Notes as for Exchange Notes issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities Indenture") between the Company, the Company (i) will be entitled Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Apogent Technologies Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the a) The Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant use its best efforts to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") SEC on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") or prior to the Holders of Transfer Restricted Securities Filing Date a Registration Statement for an offer to exchange (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the a "Registered Exchange Offer, ") any and all of the Registrable Notes (subject to issue and deliver to such Holders, in exchange Section 2(c)) for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical Notes which are in all material respects identical to the Initial Securities and registered under the Securities Act Registrable Notes (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) to cause such the Registration Statement covering the Registered Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after on or prior to the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and Effectiveness Date, (ii) to keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities open for a period of not less than 180 days after the period required under applicable federal and state securities laws (provided; that in no event shall such period be less than 30 days), (iii) to maintain such Registration Statement continuously effective for a period (the "Exchange Period") of not less than the longer of (A) the period until the consummation of the Registered Exchange Offer. IfOffer and (B) the period of up to 180 days, upon consummation subject to extension pursuant to the last paragraph of Section 6, ending when any resales of Exchange Notes covered by such Registration Statement have been made, (iv) to consummate the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired Offer prior to the Consummation Date and (v) to deliver to the Registrar under the Indenture for cancellation an amount of Notes having the same aggregate principal amount as the aggregate principal amount of Notes exchanged by it as part of its initial distribution, the Company, simultaneously with the delivery of the Holders thereof for Exchange Securities Notes pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities . Each of the Company issued under Recipients (other than any Restricted Person), by its acceptance of the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities Notes and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offerbenefits of this Agreement, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statementrepresents, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount Registrable Notes to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating exchanged in the Registered Exchange Offer (other than any Restricted Person) shall be required to represent represent, that any Exchange Notes to be received by it shall be acquired in the Company ordinary course of its business and that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will it shall have no arrangements or understanding arrangement with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities Notes. Upon consummation of a Registered Exchange Offer in accordance with this Section 2 and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection compliance with any resale of such Exchange Securities. Notwithstanding any the other provisions hereofof this Section 2, the Company will ensure shall, subject to Sections 2(b) and 2(c), have no further obligation to register Registrable Notes pursuant to Section 3 of this Agreement; provided, that the other provisions of this Agreement shall continue to apply as set forth in such provisions.
(b) In the event that the Company reasonably determines in good faith and after conferring with counsel that (i) any the Exchange Notes would not, upon receipt in the Registered Exchange Offer Registration Statement and by any amendment thereto and Holder of Registrable Notes (other than any prospectus forming part Restricted Person), be tradeable by each Holder thereof and any supplement thereto complies in all material respects with without restriction under the Securities Act and the rules Exchange Act and regulations thereunderwithout material restriction under applicable blue sky or state securities laws, (ii) any Exchange Offer the SEC is unlikely to permit the Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether covering the Registered Exchange Offer is permitted by applicable federal law, to become effective prior to the Effectiveness Date (except in the circumstances set forth in
(c) In the event that the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection reasonably determines in good faith and after conferring with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation counsel that (i)
(A) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if anyExchange Notes would not, upon which such counsel has concluded that consummation of any resale thereof by a Restricted Person to any Person other than another Restricted Person, be tradeable by each Holder thereof without restriction under the Securities Act and the Exchange Act and without material restriction under applicable blue sky or state securities laws, or (B) the SEC is unlikely to permit the Registration Statement covering the Registered Exchange Offer should to become effective prior to the Effectiveness Date solely because such Registration Statement covers resales of the Exchange Notes by Restricted Persons, then the Company shall promptly deliver a Shelf Notice to the Restricted Persons who are Holders of Registrable Notes and the Trustee and the Company shall thereafter file an Initial Shelf Registration pursuant to, and otherwise comply with, the provisions of Section 3; provided; that such Initial Shelf Registration need only cover resales of Registrable Notes by Restricted Persons if a Shelf Notice is not then otherwise required to be permitted delivered pursuant to Section 2(b). Following the delivery of a Shelf Notice in accordance with this Section 2(c) and compliance with Section 3, the Company shall not have any further obligation under this Section 2 with respect to the filing of an offer to exchange the Registrable Notes held by Restricted Persons (iiiincluding, without limitation, any obligation to provide that a Registration Statement filed pursuant to Section 2(a) diligently pursuing a resolution (which need not be favorable) cover resales of Exchange Notes by the Commission staffRestricted Persons).
Appears in 1 contract
Samples: Registration Rights Agreement (Transtexas Gas Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not ------------------------- later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Holder that is a broker-dealer electing to exchange Securities acquired for its own account as a result of market-making activities or other trading activities for Exchange Securities (an "Exchanging Dealer") acknowledge that, ----------------- pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), Exchanging Dealer is required to deliver a prospectus containing substantially the information set forth (i) in (a) Annex A hereto on the covercover of such prospectus, (bii) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, sections of such prospectus and (ciii) in Annex C hereto in the "Plan of Distribution" section of such prospectus prospectus, in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of the Securities or the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Black & Decker Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 45 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 135 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 165 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Aurora Foods Inc /De/)
Registered Exchange Offer. Unless not permitted by applicable law (after Upon the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice occurrence of the Registered Exchange Offer is mailed in accordance with the Registration Rights Agreement, the Issuer or the Company, as applicable, will issue, under the Second Supplemental Indenture, and, upon receipt of an authentication order in accordance with the Indenture, the Trustee will authenticate one or more Global Notes in an aggregate principal amount equal to the Holders (such period being called principal amount of the "EXCHANGE OFFER REGISTRATION PERIOD"). If beneficial interests in the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate Restricted Global Notes accepted for exchange in the Registered Exchange Offer 30 days after such commencement (provided by Persons that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities certify in the ordinary course applicable letter of such Xxxxxx's business and has no arrangements with any person to participate transmittal that (A) they are not Broker-Dealers, (B) they are not participating in the a distribution of the Exchange Securities and is (C) they are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities affiliates (as defined belowin Rule 144) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 Issuer or 508 of Regulation S-K under the Securities ActCompany, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after Following the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may will be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, treated as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, same series as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchangeoriginal Notes. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection Concurrently with the issuance of such decisionExchange Securities, including without limitation the Trustee will cause the aggregate principal amount of the Restricted Global Notes to be reduced accordingly, and the Issuer or the Company, as applicable, will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the appropriate principal amount. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (i“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. THIS SECURITY (OR ITS PREDECESSOR) participating in telephonic conferences with the CommissionWAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER STATE SECURITIES LAW. THIS SECURITY REPRESENTED BY THIS GLOBAL CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (B) PURSUANT TO AN APPLICABLE EXEMPTION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, AND UNLESS IN ACCORDANCE WITH THE INDENTURE REFERRED TO HEREINAFTER, COPIES OF WHICH ARE AVAILABLE AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF THE SECURITIES REPRESENTED HEREBY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH RULE MAY HEREAFTER BE AMENDED FROM TIME TO TIME, “RULE 144A”). IN ADDITION, ANY SUCH TRANSFER OR OTHER DISPOSITION IS SUBJECT TO THE CONDITIONS CONTAINED IN THE PURCHASE AGREEMENT. A COPY OF SUCH CONDITIONS WILL BE PROVIDED TO THE HOLDER HEREOF UPON REQUEST. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (iiII) delivering OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. Prior to the Commission staff an analysis prepared by counsel to expiration of the Company setting forth Restricted Period each Regulation S Note shall bear the legal basesfollowing additional legend: THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, if anyAS AMENDED (THE “SECURITIES ACT”), upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT. No. $
Appears in 1 contract
Samples: Second Supplemental Indenture (Keurig Dr Pepper Inc.)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 80 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Securities (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall , except for the transfer restrictions relating to the Securities, (ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 225 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Securities will be issued under the Indenture or an indenture (the "EXCHANGE SECURITIES INDENTURE") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEEXCHANGE SECURITIES TRUSTEE"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within Company, or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALER"), ) is required to deliver a prospectus containing substantially the information set forth in (a) Annex ANNEX A hereto on the covercover of such prospectus, (b) Annex in ANNEX B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" sectionsections of such prospectus, and (c) Annex in ANNEX C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Securities held by such Holder (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under the Indenture and that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIES"), except for the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
; (d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
and (e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
: (xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
; (yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
and (zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer (as hereinafter defined) such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (MTS Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 150 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Securities (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "EXCHANGE SECURITIES") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 225 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 255 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Securities will be issued under the Company commences Indenture dated November 12, 1999 (the Registered Exchange Offer"Indenture") or an indenture (the "EXCHANGE SECURITIES INDENTURE") between the Company, the Company Guarantors and SunTrust Bank, Atlanta, in its capacity as the Trustee (ithe "TRUSTEE") will be entitled or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchaser, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEEXCHANGE SECURITIES TRUSTEE"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors and the Initial Purchaser acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section and references thereto in the section describing the "Exchange Offer" section of such prospectus and other appropriate sections of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects Offer. If, prior to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation the Initial Purchaser holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder, as a result of a change in law or interpretations, is not entitled to participate in the Registered Exchange Offer, the Company shall, upon the request of any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Companysuch Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Securities held by such Holder (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "PRIVATE EXCHANGE SECURITIES") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that Company shall use its reasonable best efforts to keep the Exchange Securities will not Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none prospectus delivery requirements of the Securities will have Act for such period of time as such persons must comply with such requirements in order to resell the right Exchange Securities; PROVIDED that in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer the Company shall make such prospectus and any amendment or supplement thereto available to vote or consent as any Exchanging Dealer for use in connection with any resale of any Exchange Securities for a class separate from one another on any matterperiod of up to 90 days after the consummation of the Registered Exchange Offer. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Georgia Gulf Corp /De/)
Registered Exchange Offer. Unless not permitted by applicable law (after the The Company has complied with the ultimate paragraph of this Section 1)shall, the Company shall at its own cost, prepare and, not later than 270 days 12 months after (such 270th or if the last day being of the 12th month is not a "FILING DEADLINE"business day, the first business day thereafter) after the date on which the Initial Purchasers purchase of original issue of the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Issue Date”), file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company issued under the Indenture, Indenture and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act (the "EXCHANGE SECURITIES")Act. The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days 15 months (or if the last day of the 15th month is not a business day, the first business day thereafter) after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") of the Initial Securities and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled to consummate close the Registered Exchange Offer 30 20 business days after such the commencement (thereof; provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law The Company and the Subsidiary Guarantors shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") the date that is one year after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Expiration Date (the date of such filing being referred to herein as the "CLOSING DATEFiling Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesSecurities (including, for the avoidance of doubt, the Securities issued in accordance with the Forward Commitment Agreement), a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable their best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Date Filing Date, (such 360th day being an "EFFECTIVENESS DEADLINE"iii) and (ii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective Statement, initiate the Registered Exchange Offer as set forth in the following paragraph and (iv) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders in accordance with the following paragraph (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences same indenture as the Registered Exchange OfferSecurities (the "Indenture") among the Company, the Company Subsidiary Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to the Dealer Managers, as trustee (i) will the "Trustee"), as the Securities, with such modifications as may be entitled appropriate to consummate account for the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days Securities Act. As soon as practicable after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange Securities (including, for the Initial avoidance of doubt, the Securities issued in accordance with the Forward Commitment Agreement) for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required required, in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer, to deliver a prospectus containing substantially the information set forth (i) in (a) Annex A hereto on the covercover of such prospectus, (bii) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section of such prospectus and (ciii) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"prospectus. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder of Securities and the Purchasers a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the HoldersHolders of Securities and the Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of businessthe Registered Exchange Offer, New York timeas set forth in the materials originally mailed to Holders of Securities or otherwise extended by the Company;
(e) prior to effectiveness of the Exchange Offer Registration Statement, on if requested or required by the last business day on which Securities and Exchange Commission (the "Commission"), use its best efforts to provide a supplemental letter to the Commission (A) stating that the Company is conducting the Registered Exchange Offer shall remain openin reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Company has not entered into any arrangement or understanding with any person to distribute the Exchange Securities to be received in the Registered Exchange Offer and that, to the best of the Company's information and belief, each Holder participating in the Registered Exchange Offer is acquiring the Exchange Securities in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the Exchange Securities; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all Securities (including, for the avoidance of doubt, Securities validly issued in accordance with the Forward Commitment Agreement) tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of one year from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue the closing of the Initial SecuritiesExchange Offer. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate and is not participating in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall prepare and, not later than 270 45 days (such 270th day being a "FILING DEADLINE") after following the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE")Closing Date, shall file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial SecuritiesNotes, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Notes") identical in all material respects to the Initial Securities and registered under Notes, except for the Securities Act (transfer restrictions relating to the "EXCHANGE SECURITIES"). The Company Notes, shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 105 days after of the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Notes will be issued under the Indenture or an indenture (the "Exchange Notes Indenture") between the Company commences and the Registered Trustee or such other bank or trust company reasonably satisfactory to you, as trustee (the "Exchange OfferNotes Trustee"), the Company (i) will such indenture to be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted identical in all the Initial Securities theretofore validly tendered in accordance material respects with the terms of Indenture except for the Registered Exchange Offer) and transfer restrictions relating to the Notes (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferNotes) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial SecuritiesNotes, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.the
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Core Mark International Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 240 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company and the Trustee or such other bank or trust company that is reasonably satisfactory to you, as trustee (the "Exchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled to consummate close the Registered Exchange Offer 30 days after such the commencement (thereof provided that the Company has accepted all the Initial Securities Notes theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered . The Company may, in its discretion, accept tenders of Notes for Exchange Offer no later than 40 days Notes after the date on which that the Company consummates the Exchange Offer Registration Statement is declared effective (with respect to Notes tendered as of the date of initial consummation and, for purposes of Section 3(a)(iii), the Exchange Offer shall be deemed to have been consummated notwithstanding any such 40th day being extension of the "CONSUMMATION DEADLINE")tender period. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and the Company shall make such prospectus and any amendment or supplement thereto available to any Exchanging Dealer for such period. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, applicable and (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities Notes for its own account in exchange for Initial Securities Notes that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesNotes. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Magellan Health Services Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the a) The Company has complied with the ultimate paragraph of this Section 1)shall, the Company shall at its own cost, prepare and, not later than 270 90 days after (such 270th or if the 90th day being is not a "FILING DEADLINE"business day, the first business day thereafter) after the date on which the Initial Purchasers purchase of original issue of the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Issue Date”), file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company issued under the Indenture, Indenture and identical in all material respects to the applicable series of Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act (the "EXCHANGE SECURITIES")Act. The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 180 days (or if the 180th day is not a business day, the first business day thereafter) after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") of the Initial Securities and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). .
(b) If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled to consummate close the Registered Exchange Offer 30 days after such the commencement (thereof; provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer.
(c) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's ’s business and has no arrangements with any person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. .
(d) The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section or corresponding section and the "“Purpose of the Exchange Offer" ” section or corresponding section, and (c) Annex C hereto in the "“Plan of Distribution" ” section or corresponding section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. .
(e) The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days following the effective date of the Exchange Offer Registration Statement and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 90 days after the consummation of the Registered Exchange Offer. .
(f) If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". “Securities”.
(g) In connection with the Registered Exchange Offer, the Company shall:
(ai) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(bii) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(ciii) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New YorkOffer, which may be the Trustee or an affiliate of the Trustee;
(div) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(ev) otherwise comply with all applicable laws. .
(h) As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(xi) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and or the Private Exchange;
(yii) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(ziii) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Securities Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted or tendered for exchange. .
(i) The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities of a series will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. .
(j) Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. .
(k) Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. .
(l) Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Senior Discount Notes (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under Form S-1 or Form S-4, if the Securities Act use of 1933, as amended (the "SECURITIES ACT")such forms is then available, with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Senior Discount Notes (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesSenior Discount Notes, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities and registered under Senior Discount Notes, except for the Securities Act transfer restrictions relating to the Senior Discount Notes, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Senior Discount Exchange Notes will be issued under the Senior Discount Notes Indenture or an indenture (the "Senior Discount Exchange Notes Indenture") between the Company commences and the Senior Discount Notes Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the "Senior Discount Exchange Notes Trustee"), such indenture to be identical in all material respects to the Senior Discount Notes Indenture, except for the transfer restrictions relating to the Senior Discount Notes (as described above). If, prior to the consummation of the Registered Exchange Offer, any Holder holds any Senior Discount Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Registered Exchange Offer, the Company (i) will be entitled to consummate shall, upon the Registered Exchange Offer 30 days after request of any such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance Holder, simultaneously with the terms delivery of the Registered Senior Discount Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence Notes in the Registered Exchange Offer, it being issue and deliver to any such Holder, in exchange for the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that Senior Discount Notes held by such Holder is not an affiliate (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company within that are identical in all material respects to the meaning of Senior Discount Exchange Notes (the Securities Act, acquires the "Private Senior Discount Exchange Securities in the ordinary course of such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERNotes"), is required except for the transfer restrictions relating to deliver a prospectus containing such Private Senior Discount Exchange Notes. The Private Senior Discount Exchange Notes will be issued under the information set forth in (a) Annex A hereto on same indenture as the coverSenior Discount Exchange Notes, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and cause the Private Senior Discount Exchange Securities are herein collectively called Notes to bear the "SECURITIES"same CUSIP number as the Senior Discount Exchange Notes. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Senior Discount Notes at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly Senior Discount Notes tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;; 4
(yb) deliver to the Senior Discount Notes Trustee for cancellation all the Initial Securities Senior Discount Notes so accepted for exchange; and
(zc) cause the Senior Discount Notes Trustee or the Senior Discount Exchange Notes Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Senior Discount Exchange Securities Notes or Private Senior Exchange SecuritiesNotes, as the case may be, equal in principal amount to the Initial Securities Senior Discount Notes of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Senior Discount Exchange Notes; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Senior Discount Exchange Notes held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Senior Discount Exchange Notes for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Senior Discount Notes Indenture will or the Senior Discount Exchange Notes Indenture, as the case may be, shall provide that the Senior Discount Notes, the Senior Discount Exchange Securities will not be subject to Notes and the transfer restrictions set forth in the Indenture and that all the Securities will Private Senior Discount Exchange Notes shall vote and consent together on all matters as one class and that none of the Securities Senior Discount Notes, the Senior Discount Exchange Notes or the Private Senior Discount Exchange Notes will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Senior Discount Exchange Security Note and Private Senior Discount Exchange Security Note issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from accrete in the last interest payment date on which interest was paid on manner provided in the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesSenior Discount Notes Indenture. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Senior Discount Exchange Securities Notes received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding understandings with any person to participate in the distribution of the Securities Senior Discount Notes or the Senior Discount Exchange Securities Notes within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. 5 Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Trans Resources Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Company and the Guarantor shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 210 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Issue Date”), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, “Exchange Securities”) that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 270 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 300 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial “Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"Period”). Following The Exchange Securities will be issued under the declaration of Indenture or an indenture (the “Exchange Securities Indenture”) among the Company, the Guarantor and the Trustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the “Exchange Securities Trustee”), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). As soon as practicable after the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantor, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" section, ” section and (c) in Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the “Private Exchange”), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and “Private Exchange Securities”) that are identical in all material respects to the Initial Exchange Securities, except for the transfer restrictions relating to such Private Securities (the "PRIVATE EXCHANGE SECURITIES")Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business12:00 pm midnight, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, to promptly authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation tender of the Securities by such Holder pursuant to the Registered Exchange Offer that (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding understandings with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or the Guarantor or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantor will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Wesco International Inc)
Registered Exchange Offer. Unless To the extent not permitted prohibited by ------------------------- applicable law (after or applicable interpretation of the Company has complied with staff the ultimate paragraph of this Section 1)Commission, the Company and the Guarantors shall use their reasonable best efforts to (i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration ---------- statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form ------------------------------------- under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such ------------------------- Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under unconditionally guaranteed, on a senior unsecured basis, by the Indenture, Guarantors (the "Exchange Securities") that are identical in all ------------------- material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (iii) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 135 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 165 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities ---------------------------------- will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities ------------------- Indenture") among the Company, the Company (i) will be entitled Guarantors and the Trustee or such other bank --------- or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in --------------------------- all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall as promptly as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), ----------------- may be deemed to be an "underwriter" within the meaning of the Securities Act and is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate ---------------- principal amount of debt securities of the Company issued under guaranteed by the Indenture and Guarantors (the "Private Exchange Securities") that are identical in all material respects --------------------------- to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company and the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company and the Guarantors shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company and the Guarantors shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in -------- the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company and the Guarantors shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture (which may be the same document), as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Bertuccis of White Marsh Inc)
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSIONSEC" or "Commission"), the Company shall (i) prepare and, not later than 90 days following the date of the original issuance of the Securities (the date of such filing being referred to herein as the "Filing Date"), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable their best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Filing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer as set forth in the following paragraph. The Exchange Securities will be issued under the same indenture as the Securities (the "Indenture") to be dated as of May 20, 2003, between the Company and the Trustee or such other bank or trust company that is mailed reasonably satisfactory to the Holders Initial Purchasers, as trustee (such period being called the "EXCHANGE OFFER REGISTRATION PERIODTrustee"). If , with such modifications as may be appropriate to account for the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer (as defined herein) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required required, in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer, to deliver a prospectus containing substantially the information set forth (i) in (a) Annex A hereto on the covercover of such prospectus, (bii) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section of such prospectus and (ciii) in Annex C hereto in the "Plan of Distribution" section of such prospectus prospectus, in connection with a sale each case subject to any changes, additions, deletions or moving of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information disclosure required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 45 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the HoldersHolders of Securities and the Initial Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally mailed to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of one year from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement for up to 2 periods (each a "Suspension Period") of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to maturity of the Securities), but no more than an aggregate of 75 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue issuance of the Initial Securities. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 on ------------------------- or prior to 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the ---------- "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the ------------------------------------- Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in ------------------------- exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities Securities, and registered under are unconditionally guaranteed by the Securities Act Guarantor, except for the transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated within 185 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer -------------- Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the ------------------- Indenture or an indenture (the "Exchange Securities Indenture") between the ----------------------------- Issuers and the trustee under the Indenture (the "Trustee") or such other bank ------- or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in --------------------------- all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities to do so (assuming that such Holder (a) is not an affiliate any of the Company within Issuers or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchasers and each Exchanging Dealer (as hereinafter defined) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), ----------------- is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled pursuant to current interpretations by the CompanyCommission's Staff to participate in the Registered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities ---------------- of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all --------------------------- material respects to the Initial Securities (Exchange Securities, and are unconditionally guaranteed by the "PRIVATE EXCHANGE SECURITIES")Guarantor , except for the placement of a legend setting forth transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its commercially reasonable efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of any of the Securities ActIssuers or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Metris Direct Inc)
Registered Exchange Offer. Unless not permitted by applicable law Holdings shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) use its reasonable best efforts to prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, Holdings that are identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIESExchange Securities"). The Company shall , except that the Exchange Securities will not contain terms with respect to transfer restrictions, (ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 225 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Senior Discount Notes Indenture (the Registered "Indenture") or an indenture (the "Exchange OfferSecurities Indenture") between Holdings, the Company Guarantors party thereto and the Senior Discount Notes Trustee (ithe "Trustee") will be entitled or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except with respect to the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Holdings shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of Holdings or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Holdings, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" sectionsections of such prospectus, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("Regulation S-K"), as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities (as defined) that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Exchanging Dealers, and Holdings shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, Holdings shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under the Indenture and Holdings that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange Securities"), except with respect to the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, the Exchange Securities and Holdings shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Holdings shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Holdings shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. Holdings shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that Holdings shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Holdings that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act) of Holdings or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Holdings will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (WTNH Broadcasting Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the The Company has complied with the ultimate paragraph of this Section 1)shall, the Company shall at its own cost, prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant and use all commercially reasonable efforts to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) not later than February 20, 2018 a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company issued under the Indenture, Indenture and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act (the "EXCHANGE SECURITIES")Act. The Company shall use its all commercially reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") on or before May 21, 2018 and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). For the avoidance of doubt, (x) the Exchange Offer Registration Statement shall be the Exchange Offer Registration Statement under and as defined in that certain Registration Rights Agreement, dated as of August 24, 2017, by and among the Company and Xxxxx Fargo Securities, LLC (the “Existing Registration Rights Agreement”) and (y) the Registered Exchange Offer shall be made concurrently with, and on the same terms as, the Registered Exchange Offer under and as defined in the Existing Registration Rights Agreement for the Initial Securities (as defined in the Existing Registration Rights Agreement). If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled use all commercially reasonable efforts to consummate issue on or prior to 30 business days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities and related guarantees thereof in exchange for all Initial Securities and related Guarantees tendered prior thereto in the Registered Exchange Offer 30 days after such commencement (Offer; provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an each Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its all commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an the Initial PurchaserPurchasers, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 90 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any the Initial Purchaser holds Purchasers hold Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such the Initial Purchaser Purchasers upon the written request of such the Initial PurchaserPurchasers, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such the Initial PurchaserPurchasers, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". “Securities.” In connection with the Registered Exchange Offer, the Company shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and;
(e) otherwise comply in all material respects with all applicable laws. As ; and
(f) as soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(xi) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yii) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(ziii) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder has no and will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (H&E Equipment Services, Inc.)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Transfer Restricted Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Transfer Restricted Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 225 days after the Issue Date, and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date that notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities and the Private Exchange Securities (as defined below), if any, will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Trustee or such other bank or trust company reasonably satisfactory to you, as trustee (the "Exchange OfferSecurities Trustee"), such indenture to be identical in all material respects to the Indenture except for the transfer restrictions relating to the Securities (as described above). The Indenture or Exchange Securities Indenture, as the case may be, shall provide that the holders of the Exchange Securities, the Company Private Exchange Securities and the Securities shall vote and consent together on all matters (ias to which any of such holders may vote or consent) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided as one class and that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms none of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which holders of the Exchange Offer Registration Statement is declared effective (such 40th day being Securities, the "CONSUMMATION DEADLINE")Private Exchange Securities or the Securities will have the right to vote or consent as a separate class on any matter. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Transfer Restricted Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined below) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Participating Broker-Dealers (as defined), and the Company shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company upon the request of any such Holder, shall simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGEPrivate Exchange") for the Initial such Securities held by any such Initial PurchaserHolder, a like principal amount of debt securities notes (the "Private Exchange Securities") of the Company issued under the Indenture and that are identical in all material respects to the Initial Exchange Securities (except for the "PRIVATE EXCHANGE SECURITIES")placement of a restrictive legend on the Private Exchange Securities. The Initial Securities, Private Exchange Securities shall be issued pursuant to the same indenture as the Exchange Securities and shall bear the Private same CUSIP number as the Exchange Securities are herein collectively called the "SECURITIES"Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days after the date that notice of the Registered Exchange Offer is mailed to the Holders (or longer, longer if required by applicable law) after the date notice thereof is mailed to the Holders);
(c) utilize the services of a depositary Depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all laws applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or and the Private Exchange, as the case may beif any, the Company shall:
(xa) accept for exchange all the Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Transfer Restricted Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Private Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none Company shall make available, for a period of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of 90 days after the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of businessOffer, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution a copy of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution forming part of the Exchange Securities and (v) if such Holder is a Offer Registration Statement to any broker-dealer, that it will receive Exchange Securities dealer for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus use in connection with any resale of such any Private Exchange Securities or Exchange Securities. Notwithstanding any other provisions hereof, as the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as case may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staffbe.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (STC Broadcasting Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after The Company and the Company has complied with the ultimate paragraph of this Section 1), the Company Trust shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant use their best efforts to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (within 90 calendar days after the "COMMISSION") Closing Date a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for (a) the Initial Capital Securities, a like aggregate principal amount of debt a new series of capital securities of the Company issued under Trust (the Indenture, "Exchange Capital Securities") with terms substantially identical in all material respects to those of the Initial Capital Securities and registered (except that the Exchange Capital Securities will not contain terms with respect to transfer restrictions under the Securities Act Act, and will be entitled, to the extent applicable, to the benefits of trust indentures which have been qualified under the Trust Indenture Act), (b) the Guarantee, the Company's guarantee in respect of the Exchange Capital Securities (the "EXCHANGE SECURITIESExchange Guarantee") with terms substantially identical to those of the Guarantee (except that the Exchange Guarantee will not contain terms with respect to transfer restrictions under the Securities Act) and (c) the Junior Subordinated Debentures, a like amount of a new series of junior subordinated debentures (the "Exchange Junior Subordinated Debentures" and, together with the Exchange Capital Securities and the Exchange Guarantee, the "Exchange Securities") with terms substantially identical to those of the Junior Subordinated Debentures (except that the Exchange Junior Subordinated Debentures will not contain terms with respect to transfer restrictions under the Securities Act, and will be entitled, to the extent applicable, to the benefits of trust indentures which have been qualified under the Trust Indenture Act). The Company , shall use its reasonable their best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 150 calendar days after of the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 calendar days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange OfferDebenture Trustee or such other bank or trust company reasonably satisfactory to you, the Company as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Trust shall promptly commence the Registered Exchange Offer, it being the objective . An exchange for purposes of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities clauses (assuming that such Holder is not an affiliate i) and (ii) of the Company within the meaning of the Securities Act, acquires next sentence will be deemed to have been completed only if the Exchange Securities received by holders, other than holders that are unable to make the representations set forth in the ordinary course penultimate paragraph of Section 1 or are referred to in clause (iv) of Section 2 hereof, are, upon receipt, transferable by each such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt holder without any limitations or restrictions restriction under the Securities Act and without material restrictions under the blue sky or securities laws of a substantial majority of the several states States of the United StatesStates of America. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company and the Trust having exchanged the Exchange Securities for all outstanding Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Securities that have been properly tendered and not withdrawn before the expiration of the Exchange Offer Registration Period. The Company acknowledges and the Trust acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment it is required to deliver a prospectus prospectus, containing the information required by Items 507 or and/or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such a sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company and the Trust shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than that 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the HoldersHolders (or longer if required by applicable law);
(c) utilize the services of a depositary Depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable lawslaws applicable to the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or Offer, the Private ExchangeCompany and/or the Trust, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Property Trustee for cancellation all the Initial Capital Securities so accepted for exchange; and
(zc) cause the Property Trustee promptly to authenticate and deliver promptly to each Holder holder of the Initial Capital Securities, Exchange Capital Securities or Private Exchange Securities, as the case may be, equal in principal liquidation amount to the Initial Capital Securities of such Holder holder so accepted for exchange. The Indenture will provide that Company shall make available for a period of 180 days after the consummation of the Registered Exchange Offer, a copy of the prospectus forming part of the Exchange Offer Registration Statement to any broker-dealer for use in connection with any resale of any Exchange Securities. The Company shall keep the Exchange Offer Registration Statement effective for a period (the "Resale Period") beginning when Exchange Securities will not be are first issued in the Exchange Offer and ending upon the earlier of (i) either (a) the expiration of the 180th day after the Exchange Offer has been completed or (b) in the event the Company and the Trust have at any time suspended the use of the prospectus contained in the Exchange Offer Registration Statement pursuant to Section 4(b) hereof, the day beyond the 180th day after the Exchange Offer has been completed that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Trust give notice pursuant to Section 4(b) hereof to and including the date when broker-dealers receive an amended or supplemented prospectus necessary to permit resales of Exchange Securities or to and including the date on which the Company and the Trust give a Resumption Notice (as defined in Section 4(x)) or (ii) such time as such broker-dealers no longer own any Exchange Securities whose resales by them are subject to the transfer restrictions prospectus delivery requirements under the Securities Act. With respect to such registration statement, each broker-dealer that holds Exchange Securities received in an Exchange Offer in exchange for Securities not acquired by it directly from the Company shall have the benefit of the rights of indemnification and contribution set forth in Section 6 hereof in connection with resales of Exchange Securities during the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesResale Period. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Trust that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Company within the meaning of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Trust will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Purchase Agreement (HSB Group Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange OfferTrustee or such other bank or trust company that is reasonably satisfactory to you, the Company as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not the Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Magellan Health Services Inc)
Registered Exchange Offer. (a) Unless not permitted by the Registered Exchange Offer would violate applicable law (after or any applicable interpretation of the Company has complied staff of the Commission, the Issuers and the Subsidiary Guarantors shall use their commercially reasonable efforts to prepare, to cause to be filed with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 Commission and to become effective on or prior to 365 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep hereof the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed with respect to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company .
(ib) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the If an Exchange Offer Registration Statement is declared filed and becomes effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of pursuant to Section 2(a) above, upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers and the Subsidiary Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial each series of Securities for Exchange the related New Securities (assuming that such Holder is not an affiliate Affiliate of the Company within Issuers or the meaning of the Securities ActSubsidiary Guarantors, acquires the Exchange New Securities in the ordinary course of such Xxxxxx's business and Holder’s business, has no arrangements with any person to participate in the distribution of the Exchange New Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange New Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section Issuers and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant Subsidiary Guarantors shall use their commercially reasonable efforts to complete the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep not later than 30 Business Days after the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that becomes effective.
(ic) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, if an Exchange Offer Registration Statement is filed and becomes effective pursuant to Section 2(a) above, the Company Issuers and the Subsidiary Guarantors shall:
(ai) mail or cause to be mailed to each Holder a copy of the prospectus Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(bii) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) 20 Business Days after the date notice thereof is mailed to the HoldersHolders (or, in each case, longer if required by applicable law);
(ciii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective under the Securities Act, supplemented and amended as required, to ensure that it is available for sales of New Securities by Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of Manhattan in New YorkYork City, which may be the Trustee or an affiliate Affiliate of the Trustee;
(dv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day Business Day on which the Registered Exchange Offer shall remain is open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Issuers and the Subsidiary Guarantors are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Issuers and the Subsidiary Guarantors have not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that, to the best knowledge of the Issuers and the Subsidiary Guarantors, each Holder participating in the Registered Exchange Offer is acquiring the New Securities in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the New Securities; and
(evii) otherwise comply in all respects with all applicable laws. .
(d) As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuers and the Subsidiary Guarantors shall:
(xi) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver to the Trustee for cancellation in accordance with Section 4(r) all the Initial Securities so accepted for exchange; and
(ziii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in a principal amount of a series of New Securities equal to the Initial principal amount of such series of the Securities of such Holder so accepted for exchange. The Indenture will provide .
(e) Each Holder hereby acknowledges and agrees that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture any broker-dealer and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to such Holder using the Registered Exchange Offer and to participate in a distribution of the Private Exchange will accrue from the last interest payment date New Securities (x) could not under Commission policy as in effect on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue this Agreement rely on the position of the Initial SecuritiesCommission in Exxon Capital Holdings Corporation (pub. Each avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Issuers, the Subsidiary Guarantors or their respective Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that Issuers and the Subsidiary Guarantors that, at the time of the consummation of the Registered Exchange Offer Offer:
(i) any Exchange New Securities to be received by such Holder will be acquired in the ordinary course of business, ;
(ii) such Holder will have no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange New Securities within the meaning of the Securities Act, ; and
(iii) such Holder is not an "affiliate," as defined in Rule 405 Affiliate of the Securities Act, of Issuers or the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, Subsidiary Guarantors.
(ivf) if such Holder is not a broker-dealer, If any Initial Purchaser determines that it is not engaged in, and does not intend eligible to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account participate in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Initial Purchaser, the Company will seek Issuers and the Subsidiary Guarantors shall issue and deliver to such Initial Purchaser or the person purchasing New Securities registered under a no-action letter or other favorable decision Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such series of Securities, a like principal amount of such series of New Securities. The Issuers and the Commission allowing Subsidiary Guarantors shall use their commercially reasonable efforts to cause the Company CUSIP Service Bureau to consummate issue the same CUSIP number for such series of New Securities as for such series of New Securities issued pursuant to the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Caesars Acquisition Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the The Company has complied with the ultimate paragraph of this Section 1)shall, the Company shall at its own cost, prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant and use all commercially reasonable efforts to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) not later than 180 days after (or if the 180th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the “Issue Date”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company issued under the Indenture, Indenture and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act (the "EXCHANGE SECURITIES")Act. The Company shall use its all commercially reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 270 days (or if the 270th day is not a business day, the first business day thereafter) after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") of the Initial Securities and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled use all commercially reasonable efforts to consummate issue on or prior to 30 business days, or longer, if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities and related guarantees thereof in exchange for all Initial Securities and related Guarantees tendered prior thereto in the Registered Exchange Offer 30 days after such commencement (Offer; provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" ” section, and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its all commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an the Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers Purchaser have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 90 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any the Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such the Initial Purchaser upon the written request of such the Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such the Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". “Securities.” In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable laws. .
(f) As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder has no and will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ” as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (H&E Equipment Services, Inc.)
Registered Exchange Offer. Unless the Registered Exchange Offer ------------------------- (as defined below) is not permitted by applicable law or Securities and Exchange Commission (after "Commission") policy, or each Holder of Transfer Restricted Securities (as defined below) notifies the Company has complied with the ultimate paragraph of this Section 1Issuer that it is a Restricted Holder (as defined below), the Company Issuer shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which the Initial Purchasers purchase Issuer is merged with and into the Initial Securities pursuant to the Purchase Agreement Company (the "CLOSING DATEClosing Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the ------------ "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the -------------------------------------- Securities Act of 1933, as amended (the "SECURITIES ACTSecurities Act"), with respect to a -------------- proposed offer to the Holders (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and ------------------------- deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount liquidation preference of debt securities of the Company issued under Issuer (the Indenture, "Exchange Securities") ------------------- and that are identical in all material respects to the Initial Securities, except for the transfer restrictions relating to the Securities and registered under the Securities Act absence of registration rights, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 on or prior to 180 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") Date, and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of commence the Registered Exchange Offer is mailed and use its reasonable best efforts to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled issue on or prior to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 business days after the date on which the Exchange Offer Registration Statement is declared effective by the Commission, Exchange Securities in exchange for all Securities tendered prior thereto in the Registered Exchange Offer (such 40th day period being called the "CONSUMMATION DEADLINEExchange Offer Registration Period"). Following The Exchange Securities ---------------------------------- will be issued under the declaration Certificate or a certificate of designation (the "Exchange Securities Certificate") executed by the Issuer, such Exchange -------------------------------- Securities Certificate to be identical in all material respects to the Certificate, except for the transfer restrictions relating to the Securities. The transfer agent for the Exchange Securities, which shall be reasonably satisfactory to the Placement Agents, is hereinafter referred to as the "Exchange Securities Transfer Agent." ----------------------------------- Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuer shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within Issuer or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not a Placement Agent holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Securities or the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuer, the Guarantors and the Placement Agents and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), ----------------- is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that if any Placement Agent elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus prospectus, containing the information required by Items 507 and/or 508 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such a sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuer and the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary depository for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuer and the Guarantors shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver deliver, or cause to be delivered, to the Trustee Transfer Agent for cancellation all the Initial Securities so accepted for exchange; and
(zc) issue, and cause the Trustee to authenticate and deliver promptly to each Holder of Transfer Agent or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTransfer Agent, as the case may be, promptly to issue, countersign and deliver to each Holder, Exchange Securities in denominations equal in principal amount to those of the Initial Securities of such Holder so accepted for exchange. Subject to the provisions of Section 4(b) hereof, the Issuer and the Guarantors shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such -------- prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Issuer and the Guarantors shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period not to exceed 90 days after the consummation of the Registered Exchange Offer. The Indenture will Certificate or the Exchange Securities Certificate, as the case may be, shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of the Securities or the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuer that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding understandings with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of under the Securities Act, of the Company or Issuer or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Issuer and each Guarantor will ensure that that, except with respect to the Holders' Information (as defined in Section 2(c)), (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law (after Period"). The Exchange Securities will be issued under the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Indenture or an indenture (the "CLOSING DATEExchange Securities Indenture") between the Company, the Guarantors and the Trustee or such other bank or trust company reasonably satisfactory to you, as trustee (the "Exchange Securities Trustee"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect such indenture to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, be identical in all material respects to the Initial Securities and registered under Indenture except for the transfer restrictions relating to the Securities Act (the "EXCHANGE SECURITIES"as described above). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to elect to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within Company, a Guarantor or an Exchanging Dealer (as defined below) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors, the Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer Offer. If, prior to the consummation of the Registered Exchange Offer, any Holder holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Registered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities in the Registered Exchange Offer, issue and (ii) an Initial Purchaser that elects deliver to sell Securities (as defined below) acquired any such Holder, in exchange for Initial the Securities constituting any portion held by such Holder (the "Private Exchange"), a like aggregate principal amount of an unsold allotmentdebt securities of the Company (the "Private Exchange Securities") that are identical in all material respects to the Exchange Securities, is required except for the transfer restrictions relating to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K such Private Exchange Securities. The Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Company shall use its reasonable best efforts to cause the Private Exchange Securities Actto bear the same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable to the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer and any Private Exchange, the Company shall:
(a) accept for exchange all Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancelation all Securities so accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as applicablethe case may be, promptly to authenticate and deliver to each Holder of Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in connection with principal amount to the Securities of such saleHolder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, therein in order to permit such prospectus to be lawfully delivered used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial PurchaserDealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of The Indenture or the Exchange Securities pursuant to Indenture, as the Registered Exchange Offercase may be, shall issue and deliver to such Initial Purchaser upon provide that the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the 4 4 ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or any of the Guarantors, or, if it is such an affiliate, such Holder it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include include, as of the consummation of the Registered Exchange Offer, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Stryker Machining Facility Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered "Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under and guarantees thereof by the Indenture, Guarantors (the "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Exchange Offer to be consummated no later than 220 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities Indenture") between the Company, the Company (i) will be entitled Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Purchaser, as trustee (the "Exchange Securities theretofore validly tendered Trustee"), such indenture to be identical in accordance with all material respects to the terms of Indenture, except for the Registered Exchange Offer) and transfer restrictions relating to the Securities (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the as described above). An Exchange Offer Registration Statement is pursuant to this Section 1 or a Shelf Registration Statement (as defined herein) pursuant to Section 2 hereof will not be deemed to have become effective unless it has been declared effective by the Commission; provided, however, that if, after it has been declared effective, the offering of Exchange Securities pursuant to an Exchange Offer Registration Statement or a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Registration Statement (as defined herein) will be deemed not to have become effective during the period of such 40th day being interference, until the "CONSUMMATION DEADLINE")offering of Registrable Securities pursuant to such Registration Statement may legally resume. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly shall, as soon as practicable, commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not the Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors and the Initial Purchaser acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer. If, prior to the consummation of the Exchange Offer, any Holder holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to any such Holder, in exchange for the Securities held by such Holder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company and guarantees thereof by the Guarantors (the "Private Exchange Securities") that are identical in all material respects to the Exchange Securities, except for the transfer restrictions relating to such Private Exchange Securities. The Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Company shall use its reasonable best efforts to cause the Private Exchange Securities to bear the same CUSIP number as the Exchange Securities. In connection with the Exchange Offer, the Company shall:
(a) mail, or caused to be mailed, to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and any Private Exchange, as the case may be, the Company shall:
(iia) an Initial Purchaser that elects accept for exchange all Securities tendered and not validly withdrawn pursuant to sell the Exchange Offer and the Private Exchange, if any;
(b) deliver to the Trustee for cancellation all Securities so accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as defined below) acquired the case may be, promptly to authenticate and deliver to each Holder, Exchange Securities or Private Exchange Securities, as the case may be, equal in exchange for Initial Securities constituting any portion of an unsold allotment, is required principal amount to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with of such saleHolder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, therein in order to permit such prospectus to be lawfully delivered used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial PurchaserDealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of The Indenture or the Exchange Securities pursuant to Indenture, as the Registered Exchange Offercase may be, shall issue and deliver to such Initial Purchaser upon provide that the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. The Exchange Offer and the Private Exchange shall be subject to the condition that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer or the Private Exchange which, (iv) if in the judgment of the Company and the Guarantors, would reasonably be expected to impair the ability of the Company or the Guarantors to proceed with the Exchange Offer or the Private Exchange. The Company and the Guarantors shall, to the extent such information is available to the Company or the Guarantors, inform the Initial Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, subject to the right of any Holder is not a broker-dealer, that it is not engaged into object to the disclosure of such information with respect to such Holder, and does not intend the Initial Purchaser shall have the right, subject to engage inapplicable law, to contact such Holders and otherwise facilitate the distribution tender of Registrable Securities in the Exchange Offer. Upon consummation of the Exchange Offer in accordance with this Agreement, the Company and the Guarantors shall have no further obligation to register the Registrable Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required pursuant to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securitiesthis Section 1. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Abraxas Petroleum Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 75 days (such 270th 75th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEDATe"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its commercially reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 140 days after the Closing Date (such 360th 140th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 180-days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGEPrivate Exchange") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange Securities"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIESSecurities". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Ucar International Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within Company, or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-broker- dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" sectionsections of such prospectus, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined belowdefined) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("Regulation S-K"), as applicable, in connection with such a sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof is applicable and Exchange Securities held by Participating Broker-Dealers (as defined), and the Company shall 3 -3- have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under the Indenture and that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange Securities"), except for the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:: 4 -4-
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker- dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is 5 -5- such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, applicable and (iv) if such Holder is not a broker-dealeran Exchanging Dealer, that it is not engaged in, and does not intend to engage in, such person shall comply with the distribution prospectus delivery requirements of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesAct. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Cooperative Computing Inc /De/)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 45 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 105 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 135 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the Indenture or an indenture (the "Exchange Securities Indenture") among the Company, RIC Holding and Holding and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) to do so, and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on to which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion Upon consummation of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawin accordance with this Section 1 (whether or not the actions or events specified in the first sentence of this Section 1 occur within the time periods specified therefor) the provisions of this Agreement shall continue to apply, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company mutatis mutandis, solely with respect to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation Securities that (i) participating were not eligible to be exchanged in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and have not been exchanged for Private Exchange Securities or (iiiii) diligently pursuing a resolution are Private Exchange Securities and Exchange Securities held by Exchanging Dealers, and the Company shall have no further obligation to register Securities (which need not be favorableother than those Securities referred to in (i) by the Commission staffabove and Private Exchange Securities) pursuant to Section 2 of this Agreement.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Ric Holding Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) use their reasonable best efforts to prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, that are identical in all material respects to the Initial Securities Notes and registered under are unconditionally guaranteed by the Securities Act Guarantors (the "EXCHANGE SECURITIESExchange Securities"). The Company shall , except that the Exchange Securities will not contain terms with respect to transfer restrictions, (ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 225 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Senior Subordinated Securities Indenture (the Registered "Indenture") or an indenture (the "Exchange OfferSecurities Indenture") between the Company, the Company Guarantors party thereto and the Senior Subordinated Notes Trustee (ithe "Trustee") will be entitled or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except with respect to the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within the meaning of (as defined in Rule 405 under the Securities Act) of the Issuers or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business business, and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Each Issuer, each Initial Purchaser and each Exchanging Dealer acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market market-making activities or other trading activities, activities for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), ) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the covercover of such prospectus, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" sectionsections of such prospectus, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if any Initial Purchaser that elects to sell Private Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("Regulation S-K"), as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the Upon consummation of the Registered Exchange OfferOffer in accordance with this Section 1, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Transfer Restricted Securities (as defined) that are Private Exchange Securities, Exchange Securities as to which clause (v) of the first paragraph of Section 2 is applicable and Exchange Securities held by Exchanging Dealers, and the Issuers shall have no further obligations to register Transfer Restricted Securities (other than Private Exchange Securities and other than in respect of any Exchange Securities as to which clause (v) of the first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Issuers shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under and the Indenture and Guarantors that are identical in all material respects to the Initial Exchange Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange Securities"), except with respect to the transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange Offer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," affiliate (as defined in Rule 405 of under the Securities Act, ) of any of the Company or Issuers or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (WTNH Broadcasting Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 30 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "EXCHANGE SECURITIES") identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 105 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 135 days after the Issue Date, and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date that notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered Exchange Offer"EXCHANGE SECURITIES INDENTURE") among the Company, the Company Subsidiary Guarantors and the Trustee or such other bank or trust company reasonably satisfactory to you, as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEEXCHANGE SECURITIES TRUSTEE"), such indenture to be identical in all material respects to the Indenture except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined below) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if the Initial Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, it is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities ActAct and the Exchange Act ("REGULATION S-K"), as applicable, in connection with such a sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Argo Tech Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer Offer. If, prior to the consummation of the Registered Exchange Offer, any Holder holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Registered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities in the Registered Exchange Offer, issue and (ii) an Initial Purchaser that elects deliver to sell Securities (as defined below) acquired any such Holder, in exchange for Initial the Securities constituting any portion held by such Holder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company (the "Private Exchange Securities") that are identical in all material respects to the Exchange Securities, except for the transfer restrictions relating to such Private Exchange Securities. The Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Company shall use its reasonable best efforts to cause the Private Exchange Securities to bear the same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an unsold allotmentappropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, is required to deliver a prospectus containing the information if required by Items 507 applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable to the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer and any Private Exchange, as the case may be, the Company shall:
(a) accept for exchange all Securities tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancellation all Securities so accepted for exchange; and
(c) cause the Trustee or 508 of Regulation S-K under the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver to each Holder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Securities Act, as applicable, in connection with of such saleHolder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, therein in order to permit such prospectus to be lawfully delivered used by all persons Exchanging Dealers and broker-dealers subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial PurchaserDealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation Notwithstanding the provisions of the Registered foregoing paragraph with respect to the period of time during which the Company shall use its reasonable best efforts to enable the use of the prospectus contained in the Exchange OfferOffer Registration Statement, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distributionbut subject to Section 3(b), the Company, simultaneously with Company may issue a notice that the delivery Exchange Offer Registration Statement is unusable pending the announcement of a material corporate transaction and may issue any notice suspending the use of the Exchange Offer Registration Statement required under applicable securities laws to be issued. The Indenture or the Exchange Securities pursuant to Indenture, as the Registered Exchange Offercase may be, shall issue and deliver to such Initial Purchaser upon provide that the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Health Net Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 90 days (such 270th 90th day being a an "EXCHANGE OFFER FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEDATe"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended 1933 (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 7 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its commercially reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 180 days after the Closing Date (such 360th 180th day being an "EXCHANGE OFFER EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required use commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. All references in this Agreement to "prospectus" shall, except when the context otherwise requires, include any prospectus (or amendment or supplement thereto) filed with the Commission pursuant to Section 4 of this Agreement. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 180-days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States of America) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. No interest shall accrue on any Initial Security surrendered in an Exchange Offer from and after the day that interest begins to accrue on the Exchange Securities issued in exchange therefor. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will its obligation to deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Wilmar Holdings Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Company and the Support Provider shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 210 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement following December 12, 2000 (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSIONCommission") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such HoldersHolders of the Securities, in exchange for the Initial their Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under similarly entitled to the Securities Act benefits of the Support Agreement, except for the transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 285 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 315 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities Indenture") between the Company, the Company (i) will be entitled Support Provider and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as Trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Support Provider shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for the applicable Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Support Provider, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for the applicable Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder, a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Exchange Securities and similarly entitled to the benefits of the Support Agreement, except for the transfer restrictions relating to such Private Exchange Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange"). The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the applicable Exchange Securities. In connection with the Registered Exchange Offer, the Company and the Support Provider shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company and the Support Provider shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of Holder, the Initial Securities, applicable Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount and maturity to the Initial Securities of such Holder so accepted for exchange. The Company and the Support Provider shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 90 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company and the Support Provider shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall also provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor therefore or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Support Provider will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Verizon Communications Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), The Issuer and the Company shall (i) ------------------------- prepare and, not later than 270 150 days following the Closing Date (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"as hereinafter defined), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted the Capital Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Capital Securities, a like aggregate principal liquidation amount of debt securities new Capital Securities (the "Exchange Capital Securities"), which Securities shall (a) represent undivided beneficial ownership interests in the assets of the Issuer, which assets shall be a new series of junior subordinated debentures issued by the Company issued under in exchange for the IndentureDebentures (the "Exchange Debentures") and (b) be guaranteed on a junior subordinated basis by the Company (the "Exchange Guarantee" and, together with the Exchange Capital Securities and the Exchange Debentures, the "Exchange Securities") to the same extent that the Guarantee guaranteed the Capital Securities, that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act deletion of certain transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their respective reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of commence the Registered Exchange Offer is mailed and use their respective reasonable best efforts to issue, on or prior to 30 business days after the Holders date on which the Registered Exchange Offer was declared effective by the Commission (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEPeriod"), Exchange Securities for Securities. Following The Exchange Capital Securities will be issued pursuant to the declaration of Trust Agreement, the Exchange Debentures will be issued pursuant to the Indenture and the Exchange Guarantee will be issued pursuant to the Guarantee Agreement. Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Issuer shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not (i) an affiliate of the Company or the Issuer within the meaning of the Securities ActAct or (ii) an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Issuer, the Initial Purchasers and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company and the Issuer shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days after the date notice of the Registered Exchange Offer is mailed to the Holders (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders);
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company and the Issuer shall:
(xa) accept for exchange all the Capital Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Property Trustee for cancellation all the Initial Capital Securities so accepted for exchange;
(c) cause Debentures in aggregate principal amount equal to the aggregate liquidation amount of Capital Securities so accepted for exchange to be exchanged for Exchange Debentures
(d) cause the Guarantee to be exchanged for the Exchange Guarantee; and
(ze) cause the Property Trustee and the Indenture Trustee promptly to authenticate and deliver promptly to each Holder holder of the Initial Capital Securities, Exchange Securities or Private Capital Securities, Debentures and Exchange SecuritiesDebentures, as the case may be, equal in principal amount or liquidation amount, as the case may be, to the Initial Securities of such Holder holder so accepted for exchange. The Company and the Issuer shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or -------- supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company and the Issuer shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will and the Trust Agreement shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of the Securities or the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security Debenture issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Debentures surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesDebentures, from the date of original issue of the Initial SecuritiesDebentures. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Issuer that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Company or the Issuer within the meaning of the Securities Act, of the Company or if it is an affiliate, such Holder it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company and the Issuer will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include include, as of the consummation of the Registered Exchange Offer, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (First American Financial Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after a) Subject to Section 2.(c) below, the Company has complied Companies shall file with the ultimate paragraph of this Section 1), SEC on or prior to the Company shall prepare and, not later than 270 days (such 270th 30th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and hereof an Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES")Offer Registration Statement. The Company shall Companies will use its their reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep have the Exchange Offer Registration Statement declared effective for not less than 30 days by the SEC on or prior to the 105th day (or longerif the Companies are unable to do so, if required by applicable lawas soon as possible thereafter) after the date notice of hereof. Unless the Registered Exchange Offer is mailed would not be permitted by applicable law or SEC policy, the Companies will commence the Exchange Offer and use their reasonable best efforts to issue New Notes on or prior to the Holders 30th Business Day (such period being called or if the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange OfferCompanies are unable to do so, the Company (ias soon as possible thereafter) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is was declared effective (such 40th day being by the "CONSUMMATION DEADLINE")SEC. Following the declaration The offer and exchange of the effectiveness of New Notes pursuant to the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer be registered pursuant to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section appropriate form and the "Purpose duly registered or qualified under applicable state securities or Blue Sky laws and will comply with all applicable tender offer rules and regulations of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Act and state securities or Blue Sky laws. The Exchange Offer and (ii) an Initial Purchaser shall not be subject to any condition, other than that elects to sell Securities (as defined below) acquired the Exchange Offer does not violate any applicable law. No securities shall be included in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement other than the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;New Notes.
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services The Companies may require each holder of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder Registrable Notes participating in the Registered Exchange Offer shall be required to represent to the Company Companies that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities New Notes received by such Holder holder will be acquired in the ordinary course of business, its business and (ii) such Holder holder will have no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities New Notes within the meaning of the Securities Act, .
(iiic) such Holder If (i) the Companies are not required to file the Exchange Offer Registration Statement or are not permitted to consummate the Exchange Offer because the Exchange Offer is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company permitted by applicable law or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act SEC policy or (ii) prior to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution consummation of the Exchange Securities Offer, any holder of Registrable Notes notifies the Companies that (A) it is prohibited by law or SEC policy from participating in the Exchange Offer or (B) it may not resell the New Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales or (vC) if such Holder it is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were dealer and owns Notes acquired as a result directly from the Companies or an Affiliate of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereofthe Companies, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required Companies shall cease to be stated therein or necessary to make the statements therein not misleading and (iiiobligated under Section 2.(a) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy above with respect to exchange offers that in the reasonable opinion of counsel Exchange Offer and shall promptly deliver to the Company raises holders of the Registrable Notes and the Trustee notice thereof (the "SHELF NOTICE") and shall thereafter file a substantial question as Shelf Registration Statement pursuant to whether Section 3. Following the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance delivery of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.a
Appears in 1 contract
Samples: Registration Rights Agreement (Golden State Petro Iom I B PLC)
Registered Exchange Offer. Unless Upon the written request of any holders of Securities, aggregating not permitted by applicable law less than 25% in aggregate principal amount at maturity of the Securities at the time then outstanding, which request may be made at any time on or after November 12, 2002 (after the Company has complied with the ultimate paragraph of this Section 1"Trigger Date"), the Company shall (i) prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for any and all of the Initial SecuritiesSecurities (including any and all PIK Notes issued after consummation of the Registered Exchange Offer under the Exchange Securities Indenture (as defined below)), a like aggregate principal amount at maturity of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and Securities, except that they will have been registered pursuant to an effective registration statement under the Securities Act and will not contain provisions restricting transfer, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Trigger Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Trigger Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities as well as any PIK Notes will be issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Company commences and the Registered Exchange OfferTrustee or such other bank or trust company that is reasonably satisfactory to the Purchasers, the Company as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not (i) an affiliate of the Company within or (ii) an Exchanging Dealer (as defined below) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the blue sky or securities laws of the several states of the United States. The Company acknowledges Company, the Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder Exchange Securities equal in principal amount at maturity to the Initial Securities of such Holder so accepted for exchangeexchange and thereafter to issue PIK Notes under the Exchange Securities Indenture if and to the extent such PIK Notes are required to be delivered under the Exchange Securities Indenture. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the period beginning on the date on which the Exchange Offer Registration Statement is declared effective and ending on the earlier to occur of (x) the date that is 180 days after the date on which the Exchange Offer Registration Statement is declared effective and (y) the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securitiestherefor. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Maxxim Medical Inc/Tx)
Registered Exchange Offer. Unless not permitted by applicable law The Company and the Guarantors shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 75 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount at maturity of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered "Exchange OfferSecurities Indenture") between the Company, the Company Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to the Purchasers, as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described herein). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined below) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Guarantors, the Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.the
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Maxxim Medical Inc/Tx)
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“SEC” or “Commission”), the Company shall (i) prepare and, not later than 240 days following the date of the original issuance of the Securities (the date of such issuance being referred to herein as the “Issuance Date”, and such 240th day following the Issuance Date being referred to herein as the “Filing Deadline”), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (the Indenture, “Exchange Securities”) that are substantially identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 days and (iii) as soon as practicable after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer as set forth in the following paragraph. The Exchange Securities will be issued under the same indenture as the Securities (the “Indenture”) dated as of April 2, 2015, among the Company, the Subsidiary Guarantors and the Trustee or such other bank or trust company that is mailed reasonably satisfactory to the Holders Initial Purchasers, as trustee (the “Trustee”), with such period being called modifications as may be appropriate to account for the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the coverrequired, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotmentOffer, is required to deliver a prospectus containing substantially the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that set forth (i) in Annex A hereto on the case where cover of such prospectus, (ii) in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser(iii) in Annex C hereto in the “Plan of Distribution” section of such prospectus, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available in each case subject to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifchanges, upon consummation of the Registered Exchange Offeradditions, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request deletions or moving of such Initial Purchaser, in exchange (disclosure required by the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company shall:
(a) mail deliver to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 60 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed delivered to the HoldersHolders of Securities and the Initial Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally delivered to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities and Exchange Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all material respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as reasonably practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of 240 days from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (i) in relation to a Shelf Registration Statement, solely for the purpose of filing of a post-effective amendment to such Shelf Registration Statement for such time as is reasonably necessary to incorporate annual audited financial information, quarterly financial information or other information required by the Commission with respect to the Company (a “Shelf Suspension Period”) where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders of the Securities to use the related prospectus and the Company is using its commercially reasonable best efforts to have such post-effective amendment declared effective or (ii) for up to two periods (each such period pursuant to this clause (ii) a “Suspension Period”) of up to 60 consecutive days (except for the consecutive 60-day period immediately prior to maturity of the Securities), but no more than an aggregate of 90 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue issuance of the Initial Securities. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law Each of the Issuer, the Partnership, the Partners and PRG (after hereinafter referred to collectively as the Company has complied with the ultimate paragraph of this Section 1"Issuer Group"), the Company shall jointly and severally, shall, at its own cost, prepare and, not later than 270 120 days (such 270th day being a "FILING DEADLINE") after the effectiveness date on which of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement PRG Guarantee (the "CLOSING DATEEffective Date"), file with the Securities and Exchange Commission (the "COMMISSIONCommission") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT")Act, with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), ) who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, Offer to issue and deliver to such Holders, in exchange for the Initial SecuritiesSecurities (including the related PRG Guarantee), a like aggregate principal amount of debt securities Exchange Securities (including the PRG Guarantee, the "Exchange Securities") of the Company Issuer issued under the Indenture, entitling the Holders thereof to the benefits of the PRG Guarantee and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) but that are registered under the Securities Act (the "EXCHANGE SECURITIES")Act. The Company Issuer Group shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 240 days after the Closing Effective Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences Issuer Group effects the Registered Exchange Offer, the Company (i) Issuer Group will be entitled to consummate close the Registered Exchange Offer 30 20 business days after such the commencement (thereof, provided that the Company Issuer Group has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company Issuer Group shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of any member of the Company Issuer Group within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's business and business, has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company Issuer Group acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such saleOffer. The Company Issuer Group shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial PurchaserDealer, such period shall be the lesser of 180 120 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company Issuer Group shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 120 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIESSecurities". In connection with the Registered Exchange Offer, the Company Issuer Group shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Capital Markets Trustee or an affiliate of the Capital Markets Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuer Group shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver to the Capital Markets Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Capital Markets Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuer that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of any member of the Company Issuer Group or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Issuer Group will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“SEC” or “Commission”), the Company shall (i) prepare and, not later than 150 days following the date of the original issuance of the Securities (the date of such filing being referred to herein as the “Filing Date”), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (the Indenture, “Exchange Securities”) that are substantially identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Filing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer as set forth in the following paragraph. The Exchange Securities will be issued under the same indenture as the Securities (the “Indenture”) to be dated as of October 26, 2009, between the Company, the Subsidiary Guarantors and the Trustee or such other bank or trust company that is mailed reasonably satisfactory to the Holders Initial Purchasers, as trustee (the “Trustee”), with such period being called modifications as may be appropriate to account for the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Holders and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the coverrequired, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotmentOffer, is required to deliver a prospectus containing substantially the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that set forth (i) in Annex A hereto on the case where cover of such prospectus, (ii) in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser(iii) in Annex C hereto in the “Plan of Distribution” section of such prospectus, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available in each case subject to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifchanges, upon consummation of the Registered Exchange Offeradditions, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request deletions or moving of such Initial Purchaser, in exchange (disclosure required by the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 60 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the HoldersHolders of Securities and the Initial Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally mailed to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities and Exchange Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of 210 days from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (i) in relation to a Shelf Registration Statement, solely for the purpose of filing of a post-effective amendment to such Shelf Registration Statement for such time as is reasonably necessary to incorporate annual audited financial information, quarterly financial information or other information required by the Commission with respect to the Company (a “Shelf Suspension Period”) where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders of the Securities to use the related prospectus and the Company is using its commercially reasonable best efforts to have such post-effective amendment declared effective or (ii) for up to 2 periods (each such period pursuant to this clause (ii) a “Suspension Period”) of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to maturity of the Securities), but no more than an aggregate of 75 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue the closing of the Initial SecuritiesExchange Offer. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law The Registrants shall use their reasonable best efforts to (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under guaranteed by the Indenture, Guarantors (the "Exchange Securities") that are identical in all material respects to the Initial Securities, except for the transfer restrictions relating to the Securities and registered under the Securities Act rights relating to this Agreement, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 270 days after following the Closing Date date of original issuance of the Securities (such 360th day being an the "EFFECTIVENESS DEADLINEIssue Date") and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the Indenture or an indenture (the "Exchange Securities Indenture") between the Registrants and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Registrants shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate (as defined in Section 10(e) below) of any of the Company within Registrants or of an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Registrants, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under guaranteed by the Indenture and Guarantors (the "Private Exchange Securities") that are identical in all material respects to the Initial Securities (NRG Northeast Registration Rights Agreement Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same Indenture as the Exchange Securities, and the Exchange Securities and Registrants shall use their reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities, upon resale of the Private Exchange Securities pursuant to a registration statement declared by the Commission. In connection with the Registered Exchange Offer, the Company Registrants shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Registrants shall:
(xa) accept for exchange all the Securities validly properly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial Securitieswho has properly tendered, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Registrants shall use their reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, NRG Northeast Registration Rights Agreement such period shall end on the earlier of 90 days from the date of the consummation of the Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Registrants shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Securities ActRegistrants or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Registrants will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Somerset Power LLC)
Registered Exchange Offer. Unless not permitted by applicable law Holdings shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 75 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Debentures (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities the Debentures (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial SecuritiesDebentures, a like aggregate principal amount of debt securities deben- tures of Holdings (the Company issued under the Indenture, "Exchange Debentures") that are identical in all material respects to the Initial Securities and registered under Debentures, except for the Securities Act transfer restrictions relating to the Debentures, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Debentures will be entitled issued under the Indenture or an indenture (the "Exchange Debentures Indenture") between Holdings and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Debentures Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Debentures (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Holdings shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Debentures for Exchange Securities Debentures (assuming that such Holder (a) is not an affiliate of Holdings or an Exchanging Dealer (as defined herein) not complying with the Company within the meaning requirements of the Securities Actnext sentence, (b) is not an Initial Purchaser holding Debentures that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities Debentures in the ordinary course of such Xxxxxx's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Debentures) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Debentures from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Holdings, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, Debentures acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Debentures (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities Debentures received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an if the Initial Purchaser that elects Purchasers elect to sell Securities (as defined below) Exchange Debentures acquired in exchange for Initial Securities Debentures constituting any portion of an unsold allotment, is the Initial Purchasers will be required to deliver a prospectus containing the information required by Items 507 or and 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained thereinIf, in order to permit such prospectus to be lawfully delivered by all persons subject prior to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial Securities any Debentures acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, Holdings shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to Debentures in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Debentures held by such Holder (the "PRIVATE EXCHANGEPrivate Exchange") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities debentures of Holdings (the Company issued under the Indenture and "Private Exchange Debentures") that are identical in all material respects to the Initial Securities (Exchange Debentures, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Debentures. The Initial Securities, Private Exchange Debentures will be issued under the same indenture as the Exchange Securities Debentures, and Holdings shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called Debentures to bear the "SECURITIES"same CUSIP number as the Exchange Debentures. In connection with the Registered Exchange Offer, the Company Holdings shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities Debentures at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company Holdings shall:
(xa) accept for exchange all the Securities validly Debentures tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities Debentures so accepted for exchange; and
(zc) cause the Trustee or the Exchange Debentures Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities Debentures or Private Exchange SecuritiesDebentures, as the case may be, equal in principal amount to the Initial Securities Debentures of such Holder so accepted for exchange. Holdings shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Debentures; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the period beginning on the date on which the Exchange Offer Registration Statement is declared effective and ending on the earlier to occur of (x) the date that is 180 days after the date on which the Exchange Offer Registration Statement is declared effective and (y) the date on which all Exchanging Dealers have sold all Exchange Debentures held by them and (ii) Holdings shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Debentures for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Debentures Indenture, as the case may be, shall provide that the Debentures, the Exchange Securities will not be subject to Debentures and the transfer restrictions set forth in the Indenture and that all the Securities will Private Exchange Debentures shall vote and consent together on all matters as one class and that none of the Securities Debentures, the Exchange Debentures or the Private Exchange Debentures will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security Debenture and Private Exchange Security Debenture issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities Debentures surrendered in exchange therefor or, if no interest has been paid on the Initial SecuritiesDebentures, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Holdings that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities Debentures received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities Debentures or the Exchange Securities Debentures within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of the Securities ActHoldings or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Holdings will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Peninsula Cellular Services Inc)
Registered Exchange Offer. Unless not permitted Resales of New Securities by applicable law Exchanging ------------------------------------------------------------------ Dealers; Private Exchange. -------------------------
(after the Company has complied with the ultimate paragraph of this Section 1), the a) The Company shall prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after the date on which of the Initial Purchasers purchase original issuance of the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE")Securities, shall file with the Securities and Commission the Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), Offer Registration Statement with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 150 days after the date on which of the Exchange Offer Registration Statement is declared effective original issuance of the Securities.
(such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange New Securities (assuming that such Securities do not constitute a portion of an unsold allotment acquired by such Holder directly from the Company and such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange New Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferNew Securities) to trade such Exchange New Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and .
(c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(ai) mail to each Holder a copy of the prospectus Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(bii) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the HoldersHolders (or longer if required by applicable law);
(ciii) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;; and
(iv) comply in all material respects with all applicable laws.
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(xi) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(ziii) cause the Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange New Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. .
(e) The Indenture will provide that Purchasers and the Exchange Securities will not be subject Company acknowledge that, pursuant to current interpretations by the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none Commission's staff of Section 5 of the Securities will have Act, and in the right absence of an applicable exemption therefrom, each Exchanging Dealer is required to vote or consent as deliver a class separate from one another on Prospectus in connection with a sale of any matter. Interest on each Exchange Security and Private Exchange Security issued New Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange for Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securitiesactivities. Notwithstanding any other provisions hereofAccordingly, the Company will ensure that shall:
(i) any include the information set forth in Annex A hereto on the cover of the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement and any amendment thereto and any prospectus in a section setting forth details of the Exchange Offer, in Annex C hereto in the underwriting or plan of distribution section of the Prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any the Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, Annex D hereto in the light Letter of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect Transmittal delivered pursuant to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer (it being understood that a Holder's participation in the Exchange Offer is permitted conditioned on the Holder, by applicable federal lawexecuting and returning the Letter of Transmittal, representing in writing to the Company will seek a no-action letter or other favorable decision from as set forth in Rider B of Annex D hereto); and
(ii) use its best efforts to keep the Commission allowing Exchange Offer Registration Statement continuously effective under the Company Securities Act during the Exchange Offer Registration Period for delivery by Exchanging Dealers in connection with sales of New Securities received pursuant to consummate the Registered Exchange Offer. The Company will pursue , as contemplated by Section 4(h) below.
(f) In the issuance of such a decision event that any Purchaser determines that it is not eligible to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required participate in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted with respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Purchaser, the Company shall issue and (iii) diligently pursuing deliver to such Purchaser or the party purchasing New Securities registered under a resolution (which need not be favorable) Shelf Registration Statement as contemplated by Section 3 hereof from such Purchaser, in exchange for such Securities, a like principal amount of New Securities. The Company shall seek to cause the Commission staffCUSIP Service Bureau to issue the same CUSIP number for such New Securities as for New Securities issued pursuant to the Registered Exchange Offer.
Appears in 1 contract
Samples: Registration Agreement (Level 3 Communications Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement Series A Notes (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Series A Notes (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial SecuritiesSeries A Notes, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "EXCHANGE NOTES") that are identical in all material respects to the Initial Securities and registered under Series A Notes, except for the Securities Act transfer restrictions relating to the Series A Notes, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date (such 360th day being an later date, the "EFFECTIVENESS CONSUMMATION DEADLINE") and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Notes will be issued under the Indenture or an indenture (the "EXCHANGE NOTES INDENTURE" ) among the Company commences and the Registered Exchange Offer, the Company (i) will be entitled Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEEXCHANGE NOTES TRUSTEE"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Series A Notes (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities Series A Notes for Exchange Securities Notes (assuming that such Holder (i) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) that fails to comply with the meaning requirements of the Securities Actnext sentence, (ii) is not an Initial Purchaser holding Series A Notes that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (iii) acquires the Exchange Securities Notes in the ordinary course of such XxxxxxHolder's business and (iv) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Notes) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities Notes from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial SecuritiesSeries A Notes, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities Notes (an "EXCHANGING DEALER"), ) is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "The Exchange Offer ProceduresOffer" section and the "Purpose of the Exchange Offer" section, and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial Securities any Series A Notes acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to Notes in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Series A Notes held by such Holder (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "PRIVATE EXCHANGE NOTES") that are identical in all material respects to the Initial Securities (Exchange Notes, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Notes. The Initial Securities, Private Exchange Notes will be issued under the same indenture as the Exchange Securities Notes, and the Company shall use its reasonable efforts to cause the Private Exchange Securities are herein collectively called Notes to bear the "SECURITIES"same CUSIP number as the Exchange Notes. In connection with the Registered Exchange Offer, the Company shall:
(a) mail or cause to be mailed to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
; (b) keep the Registered Exchange Offer open for not less than 30 days (or longer, longer if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Nevada Power Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i)(A) prepare and, and (B) not later than 270 60 days (or, if the Issue Date (as defined herein) shall fall in January of any year, such 270th number of days, not less than 60, as shall equal the number of days between the Issue Date and the third business day being a "FILING DEADLINE"following the day on which the Company files with the Commission its Annual Report on Form 10-K with respect to its preceding fiscal year) after following the date on which the Initial Purchasers purchase Purchaser gives written notice to the Initial Securities Company to commence a registration pursuant to the Purchase Securities Act as contemplated by this Agreement (the date on which such notice is given, the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), the "Registered Exchange Offer") who are not prohibited by any applicable law or policy of interpretations thereof by the Commission Commission's staff from participating in the Registered Exchange Offer, Offer to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities Securities, except for the transfer restrictions and registered under registration rights relating to the Securities Act Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If ; provided that the Company commences the Registered Exchange Offer, the Company (i) will be entitled may elect to consummate close the Registered Exchange Offer 30 days after such the commencement thereof (provided that unless otherwise required by applicable law), so long as the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) . Notwithstanding the preceding sentence, the Issue Date must occur during the period commencing on the date of the termination of the Merger Agreement, in accordance with its terms, and (ii) ending one year thereafter. The Exchange Securities will be required issued under the indenture pursuant to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective Securities were issued (such 40th day being "the Indenture") or an indenture (the "CONSUMMATION DEADLINEExchange Securities Indenture") between the Company and the trustee under the Indenture or such other bank or trust company that is reasonably satisfactory to the Purchaser, as trustee (the "Exchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions and registration rights relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not the Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and business, (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and (e) is not otherwise prohibited by any applicable law or policy of interpretations thereof by the Commission Commission's staff from participating in the Registered Exchange Offer) and to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial if the Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, the Purchaser is required to deliver a prospectus containing the information required by Items Item 507 or and Item 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained thereinIf, in order to permit such prospectus to be lawfully delivered by all persons subject prior to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Registered Exchange Offer, the Company, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use commercially reasonable efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary (which may be the Trustee or an affiliate of the Trustee) for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities such Security surrendered in exchange therefor or, if no interest has been paid on the Initial Securitiessuch Security, from the date of original issue of the Initial Securitieson which such Security was issued. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.and
Appears in 1 contract
Samples: Senior Subordinated Discount Notes Agreement (Telecorp Communications Inc)
Registered Exchange Offer. Unless not permitted by applicable law clause (after i) of the Company has complied with the ultimate paragraph first sentence of this Section 1)2 shall apply, the Company shall shall, at its own cost, prepare and, not later than 270 60 days after (such 270th or if the 60th day being is not a "FILING DEADLINE"business day, the first business day thereafter) after the date on which the Initial Purchasers purchase of original issue of the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), ) file with the Securities and Exchange Commission (the ---------- "COMMISSIONCommission") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration ---------- --------------------------- Statement") on an appropriate form under the Securities Act of 1933, as amended --------- (the "SECURITIES ACTSecurities Act"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFERRegistered -------------- ---------- Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in -------------- Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the "Exchange Securities") of the Company Company, issued under the Indenture, Indenture and identical ------------------- in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that would be registered under the Securities Act Act. In addition, pursuant to the Registered Exchange Offer or a similar offer registered under the Securities Act, the Company shall offer to the holders of Existing Securities that are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer or such offer to issue and deliver to such holders, in exchange for the Existing Securities, Exchange Securities. In the remainder of this Agreement, references to "Initial Securities," unless the context is specific to Transfer Restricted Securities, shall be deemed to include Existing Securities, and references to "Registered Exchange Offer" shall be deemed to include such similar offer. For each Initial Security surrendered to the Company pursuant to the Registered Exchange Offer, the Holder of such Initial Security shall receive an Exchange Security having a principal amount at maturity and Accreted Value (as defined in the "EXCHANGE SECURITIES")Indenture) on the date of exchange equal to that of the surrendered Initial Security. The Company shall use its all reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 150 days after (or if the Closing 150th day is not a business day, the first business day thereafter) the Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) shall keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer -------------- Registration Period"). ------------------- If the Company commences effects the Registered Exchange Offer, the Company (i) will be entitled to consummate close the Registered Exchange Offer 30 days after such the commencement (thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective . The objectives of such Registered Exchange Offer are: (i) to enable each Holder of Transfer Restricted Securities (as defined in Section 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United StatesStates and (ii) to enable Existing Securities to be exchanged for securities issued under the Indenture, which would trade as one series with the other securities issued under the Indenture. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus ----------------- containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, allotment is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its all reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the -------- ------- case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days (unless such period is extended pursuant to Section 3(j) below) and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGEPrivate Exchange") for the Initial Securities held by such ---------------- Initial Purchaser, a like principal amount of debt securities of the Company Company, issued under the Indenture and identical in all material respects (including the existence of restrictions on transfer under the Securities Act and the securities laws of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the "PRIVATE EXCHANGE SECURITIESPrivate Exchange ---------------- Securities"). Each Private Exchange Security issued in exchange for an Initial ---------- Security shall have a principal amount at maturity and Accreted Value on the date of exchange equal to that of the Initial Security for which it is exchanged. The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". Securities." ---------- In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and and/or the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and each Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesAugust 15, 2003. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities to be received by such Holder will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Registered Exchange Offer such Holder will have has no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities (within the meaning of the Securities Act) of the Securities, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Telemundo Holding Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 90 days (such 270th 90th day being a "FILING DEADLINE"“Filing Deadline”) after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"“Closing Date”), file with the Securities and Exchange Commission (the "COMMISSION"“Commission”) a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"“Securities Act”), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER"“Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities (except that the Exchange Securities will not contain terms with respect to transfer restrictions and Additional Interest) and registered under the Securities Act (the "EXCHANGE SECURITIES"“Exchange Securities”). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 210 days after the Closing Date (such 360th 210th day being an "EFFECTIVENESS DEADLINE"“Effectiveness Deadline”) and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"“Exchange Offer Registration Period”). If the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"“Consummation Deadline”). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly as soon as practicable commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "“Exchange Offer Procedures" ” section and the "“Purpose of the Exchange Offer" section, ” section and (c) Annex C hereto in the "“Plan of Distribution" ” section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDEDprovided, HOWEVERhowever, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 180-days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE"“Private Exchange”) for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"“Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"“Securities”. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents, provided that the Company shall only be required to mail such prospectus to Holders of which the Company is aware after due inquiry;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation cancelation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "“affiliate," ”, as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Ameripath Indiana LLC)
Registered Exchange Offer. Unless the Registered Exchange Offer (as defined herein) shall not be permitted by applicable law (after or applicable interpretation of the Company has complied with the ultimate paragraph staff of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION"“SEC” or “Commission”), the Company and the Subsidiary Guarantors shall (i) prepare and, not later than 120 days following the date of the original issuance of the Securities (the date of such filing being referred to herein as the “Filing Date”), file with the Commission a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT"“Exchange Offer Registration Statement”) on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the “Registered Exchange Offer, ”) to issue and deliver to such Holders, in exchange for the Initial Securities, Securities a like aggregate principal amount of debt securities of the Company issued under (including the Indentureguarantees thereof by the Subsidiary Guarantors, the “Exchange Securities”) that are substantially identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 210 days after the Closing Filing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (iiiii) keep as soon as practicable after the effectiveness of the Exchange Offer Registration Statement effective for not less than 30 days (or longerStatement, if required by applicable law) after the date notice of initiate the Registered Exchange Offer is mailed to as set forth in the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD")following paragraph. If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the Indenture, with such modifications as may be appropriate to consummate account for the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms registration of the Registered Exchange Offer) and (ii) will be required to consummate Securities under the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE")Securities Act. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Subsidiary Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in the Initial Placement, (c) acquires the Exchange Securities in the ordinary course of such Xxxxxx's Holder’s business and (d) has no arrangements or understandings with any person to participate participate, and is not participating, in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Subsidiary Guarantors, the Holders and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's ’s staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a brokerBroker-dealer Dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"“Exchanging Dealer”), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the coverrequired, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotmentOffer, is required to deliver a prospectus containing substantially the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that set forth (i) in Annex A hereto on the case where cover of such prospectus, (ii) in Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser(iii) in Annex C hereto in the “Plan of Distribution” section of such prospectus, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available in each case subject to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. Ifchanges, upon consummation of the Registered Exchange Offeradditions, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request deletions or moving of such Initial Purchaser, in exchange (disclosure required by the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES"SEC. In connection with the Registered Exchange Offer, the Company on behalf of itself and the Subsidiary Guarantors shall:
(a) mail to each Holder of Securities a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days and not more than 45 business days (or or, in each case, longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the HoldersHolders of Securities and the Purchasers;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close end of business, New York time, on the last business day on which the Registered Exchange Offer shall remain openOffer, as set forth in the materials originally mailed to Holders of Securities or otherwise extended by the Company;
(e) comply with all requests of the Securities and Exchange Commission in order to consummate the Registered Exchange Offer; and
(ef) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company on behalf of itself and the Subsidiary Guarantors shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yb) deliver to the Trustee for cancellation due cancelation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee for the Exchange Securities promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company and the Subsidiary Guarantors shall use their best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the earlier of 210 days from the close of the Registered Exchange Offer and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any Broker-Dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. Notwithstanding the foregoing, during any 365-day period, the Company and the Subsidiary Guarantors may suspend the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement for up to 2 periods (each a “Suspension Period”) of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to maturity of the Securities), but no more than an aggregate of 75 days during any 365-day period, if there is a possible acquisition or business combination or other transaction, business development or event involving the Company that may require disclosure in the Exchange Offer Registration Statement or the Shelf Registration Statement and the Company determines in the exercise of its reasonable judgment that such disclosure is not in the best interests of the Company and its stockholders or obtaining any financial statements relating to an acquisition or business combination required to be included in the Exchange Offer Registration Statement or the Shelf Registration Statement would be impracticable. In such a case, the Company shall promptly notify any such Broker-Dealers of the suspension of the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, provided that such notice shall not require the Company to disclose the possible acquisition or business combination or other transaction, business development or event if the Company determines in good faith that such acquisition or business combination or other transaction, business development or event should remain confidential. Upon the abandonment, consummation or termination of the possible acquisition or business combination or other transaction, business development or event or the availability of the required financial statements with respect to a possible acquisition or business combination, the suspension of the use of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, pursuant to this paragraph shall cease and the Company shall promptly notify such Broker-Dealers that the use of the prospectus contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, as amended or supplemented, as applicable, may resume. The Company shall provide sufficient copies of the latest version of such prospectus to such Broker-Dealers, promptly upon written request, and in no event later than one Business Day after such request, at any time during such period. The Indenture will shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as to which the Indenture provides for voting and consent as one class and that none of neither the Securities nor the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue the closing of the Initial SecuritiesExchange Offer. Each Holder hereby acknowledges and agrees that any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of its affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate participate, and is not participating, in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," affiliate of the Company or, if it is such an affiliate (as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliateSection 10(e)), such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged inacting on behalf of any person who, and does to its knowledge, could not intend to engage in, truthfully make the distribution of the Exchange Securities foregoing representations and (v) if it shall have made such Holder other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or another appropriate form under the Securities Act available or for the Exchange Offer Registration Statement to be declared effective. To the extent permitted by law, upon the written request of the Initial Purchasers, the Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is a broker-dealermade, that it will receive and the Initial Purchasers shall have the right to contact such Holders and otherwise facilitate the tender of Securities in the Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange SecuritiesOffer. Notwithstanding any other provisions hereof, the Company and the Subsidiary Guarantors will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies shall comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does shall not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not shall not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change any Initial Purchaser determines that it is not eligible to participate in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal lawwith respect to the exchange of Securities constituting any portion of an unsold allotment, at the written request of such Initial Purchaser, the Company will seek and the Subsidiary Guarantors shall issue and deliver to such Initial Purchaser or the person purchasing Exchange Securities registered under a no-action letter or other favorable decision Shelf Registration Statement (as contemplated by Section 2 hereof) from such Initial Purchaser, in exchange for such Securities, a like principal amount of Exchange Securities. The Company shall use its best efforts to cause the Commission allowing CUSIP Service Bureau to issue the Company same CUSIP number for such Exchange Securities as for Exchange Securities issued pursuant to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Rite Aid Corp)
Registered Exchange Offer. Unless not permitted by applicable law (after Upon the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under the Indenture, identical in all material respects to the Initial Securities and registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act within 360 days after the Closing Date (such 360th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice occurrence of the Registered Exchange Offer is mailed in accordance with the Registration Rights Agreement, the Issuer or the Company, as applicable, will issue, under the First Supplemental Indenture, and, upon receipt of an authentication order in accordance with the Indenture, the Trustee will authenticate one or more Global Notes in an aggregate principal amount equal to the Holders (such period being called principal amount of the "EXCHANGE OFFER REGISTRATION PERIOD"). If beneficial interests in the Company commences the Registered Exchange Offer, the Company (i) will be entitled to consummate Restricted Global Notes accepted for exchange in the Registered Exchange Offer 30 days after such commencement (provided by Persons that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities certify in the ordinary course applicable letter of such Xxxxxx's business and has no arrangements with any person to participate transmittal that (A) they are not Broker-Dealers, (B) they are not participating in the a distribution of the Exchange Securities and is (C) they are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities affiliates (as defined belowin Rule 144) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 Issuer or 508 of Regulation S-K under the Securities ActCompany, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after Following the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may will be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, treated as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, same series as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchangeoriginal Notes. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection Concurrently with the issuance of such decisionExchange Securities, including without limitation the Trustee will cause the aggregate principal amount of the Restricted Global Notes to be reduced accordingly, and the Issuer or the Company, as applicable, will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the appropriate principal amount. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (i“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. THIS SECURITY (OR ITS PREDECESSOR) participating in telephonic conferences with the CommissionWAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER STATE SECURITIES LAW. THIS SECURITY REPRESENTED BY THIS GLOBAL CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (B) PURSUANT TO AN APPLICABLE EXEMPTION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, AND UNLESS IN ACCORDANCE WITH THE INDENTURE REFERRED TO HEREINAFTER, COPIES OF WHICH ARE AVAILABLE AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF THE SECURITIES REPRESENTED HEREBY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER (TOGETHER WITH ANY SUCCESSOR PROVISION, AND AS SUCH RULE MAY HEREAFTER BE AMENDED FROM TIME TO TIME, “RULE 144A”). IN ADDITION, ANY SUCH TRANSFER OR OTHER DISPOSITION IS SUBJECT TO THE CONDITIONS CONTAINED IN THE PURCHASE AGREEMENT. A COPY OF SUCH CONDITIONS WILL BE PROVIDED TO THE HOLDER HEREOF UPON REQUEST. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (iiII) delivering OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ALL OTHER APPLICABLE JURISDICTIONS, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. Prior to the Commission staff an analysis prepared by counsel expiration of the Restricted Period each Regulation S Note shall bear the following additional legend: THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT. No. $ MAPLE ESCROW SUBSIDIARY, INC., a Delaware corporation (herein called the “Issuer”), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the Company setting principal sum of DOLLARS or such other Principal Amount as shall be set forth on Schedule I hereto on May 25, 2021. Interest Payment Dates: May 25 and November 25, commencing November 25, 2018 Record Dates: May 10 and November 10 Additional provisions of this Note are set forth on the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staffother side of this Note.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 90 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Securities (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "EXCHANGE SECURITIES") that are identical in all material respects to the Initial Securities, except that the transfer restrictions relating to U.S. securities laws shall be eliminated and the Exchange Securities and registered under will not contain provisions regarding the Securities Act payment of additional interest or be subject to further registration rights, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Exchange Offer to be consummated no later than 180 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 20 business days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Securities will be issued under the Indenture or an indenture (the "EXCHANGE SECURITIES INDENTURE") between the Company commences and the Registered Exchange OfferTrustee or such other bank or trust company that is reasonably satisfactory to the Initial Purchasers, as trustee (the Company (i) will "EXCHANGE SECURITIES TRUSTEE"), such indenture to be entitled identical in all material respects to consummate the Registered Exchange Offer 30 days after such commencement (provided Indenture, except that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) transfer restrictions relating to U.S. securities laws shall be eliminated and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being Securities will not contain provisions regarding the "CONSUMMATION DEADLINE")payment of additional interest or be subject to further registration rights. Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not an Initial Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer. If, prior to the consummation of the Exchange Offer, any Holder holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Exchange Offer, the Company shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and deliver to any such Holder, in exchange for the Securities held by such Holder (the "PRIVATE EXCHANGE"), a like aggregate principal amount of debt securities of the Company (the "PRIVATE EXCHANGE Securities") that are identical in all material respects to the Exchange Securities, except for the transfer restrictions relating to U.S. securities laws shall be eliminated and such Private Exchange Securities will not contain provisions regarding the payment of additional interest or be subject to further registration rights. The Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Company shall use its reasonable best efforts to cause the Private Exchange Securities to bear the same CUSIP number as the Exchange Securities. In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date on which notice of the Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable to the Exchange Offer. As soon as practicable after the close of the Exchange Offer and any Private Exchange, as the case may be, the Company shall:
(iia) an Initial Purchaser that elects accept for exchange all Securities validly tendered and not validly withdrawn pursuant to sell the Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancellation all Securities so accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as defined below) acquired the case may be, promptly to authenticate and deliver to each Holder, Exchange Securities or Private Exchange Securities, as the case may be, equal in exchange for Initial Securities constituting any portion of an unsold allotment, is required principal amount to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with of such saleHolder so accepted for exchange. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, therein in order to permit such prospectus to be lawfully delivered used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, PROVIDED that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial PurchaserDealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of The Indenture or the Exchange Securities pursuant to Indenture, as the Registered Exchange Offercase may be, shall issue and deliver to such Initial Purchaser upon provide that the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Forest Oil Corp)
Registered Exchange Offer. Unless not permitted by applicable law The Issuers shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 days (such 270th day being a "FILING DEADLINE") after the date on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), and file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the "Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under Issuers (the Indenture"Exchange Securities"), that are identical in all material respects to the Initial Securities Securities, except that the additional interest provisions and registered under the transfer restrictions relating to the Securities Act will be eliminated, (the "EXCHANGE SECURITIES"). The Company shall ii) use its their reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 and the Registered Exchange Offer to be consummated no later than 210 days after the Closing Date date of original issuance of the Securities (such 360th day being an the "EFFECTIVENESS DEADLINEIssue Date") ), and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 calendar days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If the Company commences the Registered The Exchange Offer, the Company (i) Securities will be entitled issued under the Indenture or an indenture (the "Exchange Securities Indenture") among the Issuers and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the additional interest provisions and the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company Issuers shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of any of the Company Issuers (within the meaning of the Securities Act) or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser holding Securities that have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Issuers, the Initial Purchasers and each Exchanging Dealer (as defined below) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, and in the absence of an applicable exemption therefrom, (i) each Holder (which may include the Initial Purchasers) that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required may be deemed to be an "underwriter" within the meaning of the Securities Act and must therefore, deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company Issuers shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 calendar days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuers shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer (it being understood that all questions as to validity, form, eligibility (including time of receipt) and acceptance of Securities tendered for exchange shall be determined by the Private ExchangeIssuers in their sole discretion, which determination shall be final and binding);
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee to authenticate and deliver promptly to each Holder of or the Initial Securities, Exchange Securities or Private Exchange SecuritiesTrustee, as the case may be, promptly to authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Issuers shall use their reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Issuers shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities and the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will shall vote and consent together on all matters as one class and that none of the Securities or the Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Issuers that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 affiliate of any of the Securities ActIssuers or, of the Company or if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company Issuers will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Note Registration Rights Agreement (Jones Apparel Group Inc)
Registered Exchange Offer. Unless not permitted by applicable law The Company and the Subsidiary Guarantors shall (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING ISSUE DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders of the Securities (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture"EXCHANGE NOTES") unconditionally guaranteed on a senior subordinated basis by the Subsidiary Guarantors (the "Exchange Guarantee" and, together with the Exchange Notes, the "Exchange Securities") that are identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 135 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 165 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD"). If The Exchange Securities will be issued under the Company commences Indenture or an indenture (the Registered Exchange Offer"EXCHANGE SECURITIES INDENTURE") between the Company, the Company (i) will be entitled Subsidiary Guarantors and the Trustee or such other bank or trust company that is reasonably satisfactory to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and Purchasers, as trustee (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEEXCHANGE SECURITIES TRUSTEE"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Subsidiary Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities to do so (assuming that such Holder (a) is not an affiliate of the Company within Company, the meaning Subsidiary Guarantors, or an Exchanging Dealer (as defined herein) not complying with the requirements of the next sentence, (b) is not an Initial Purchaser with Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities Securities) and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Subsidiary Guarantors, the Initial Purchasers and each Exchanging Dealer (as defined herein) acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon prior to the consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the CompanyRegistered Exchange Offer, the Company and the Subsidiary Guarantors shall, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange for the Securities held by such Holder (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "PRIVATE EXCHANGE NOTES") unconditionally guaranteed on a senior subordinated basis by the Subsidiary Guarantors (the "Private Exchange Guarantees" and, together with the Private Exchange Notes, the "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use its reasonable best efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company and the Subsidiary Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company and the Subsidiary Guarantors shall:
(xa) accept for exchange all the Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. Each of the Company and the Subsidiary Guarantors shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) each of the Company and the Subsidiary Guarantors shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 90 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesIssue Date. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Subsidiary Guarantors that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, Act and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or a Subsidiary Guarantor or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Canton Oil & Gas Co)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i) prepare and, not later than 270 60 days (such 270th day being a "FILING DEADLINE") after following the date on which of original issuance of the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer to the Holders (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, ") to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") identical in all material respects to the Initial Securities and registered under Securities, except for the Securities Act transfer restrictions relating to the Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 150 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 165 days after the Issue Date, and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date that notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If The Exchange Securities will be issued under the Indenture or an indenture (the "Exchange Securities 2 2 Indenture") between the Company commences and the Registered Exchange OfferTrustee or such other bank or trust company reasonably satisfactory to you, the Company as trustee (i) will be entitled to consummate the Registered Exchange Offer 30 days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture except for the transfer restrictions relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined below) not complying with the meaning requirements of the Securities Actnext sentence, (b) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and (c) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange OfferSecurities) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser upon the written request of such Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES". In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days after the date that notice of the Registered Exchange Offer is mailed to the Holders (or longer, longer if required by applicable law) after the date notice thereof is mailed to the Holders);
(c) utilize the services of a depositary Depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable laws. As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities will vote and consent together on all matters as one class and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Ev International Inc)
Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the The Company shall (i)(A) prepare and, and (B) not later than 270 60 days (or, if the Issue Date (as defined herein) shall fall in January 2002 or 2003, as applicable, such 270th number of days, not less than 60, as shall equal the number of days between the Issue Date and the third business day being a "FILING DEADLINE"following the day on which the Company files with the Commission its Annual Report on Form 10-K with respect to its preceding fiscal year) after following the date on which the Initial Purchasers purchase Purchaser gives written notice to the Initial Securities Company to commence a registration pursuant to the Purchase Securities Act as contemplated by this Agreement (the date on which such notice is given, the "CLOSING DATEIssue Date"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENTExchange Offer Registration Statement") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted the Securities (as defined in Section 6 hereof), the "Registered Exchange Offer") who are not prohibited by any applicable law or policy of interpretations thereof by the Commission Commission's staff from participating in the Registered Exchange Offer, Offer to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Company issued under (the Indenture, "Exchange Securities") that are identical in all material respects to the Initial Securities Securities, except for the transfer restrictions and registered under registration rights relating to the Securities Act Securities, (the "EXCHANGE SECURITIES"). The Company shall ii) use its commercially reasonable best efforts to (i) cause such the Exchange Offer Registration Statement to become effective under the Securities Act within 360 no later than 180 days after the Closing Issue Date (such 360th day being an "EFFECTIVENESS DEADLINE") and the Registered Exchange Offer to be consummated no later than 210 days after the Issue Date and (iiiii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIODExchange Offer Registration Period"). If ; provided that the Company commences the Registered Exchange Offer, the Company (i) will be entitled may elect to consummate close the Registered Exchange Offer 30 days after such the commencement thereof (provided that unless otherwise required by applicable law), so long as the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required . Notwithstanding the preceding sentence, the Issue Date must occur on or prior to consummate April 4, 2003, the Registered Exchange Offer no later than 40 days after 180th day preceding the second anniversary of the date on which the Securities were originally issued. The Exchange Offer Registration Statement is declared effective Securities will be issued under the Indenture or an indenture (such 40th day being the "CONSUMMATION DEADLINEExchange Securities Indenture") between the Company and the Trustee or such other bank or trust company that is reasonably satisfactory to the Purchasers, as trustee (the "Exchange Securities Trustee"), such indenture to be identical in all material respects to the Indenture, except for the transfer restrictions and registration rights relating to the Securities (as described above). Following the declaration of Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder (a) is not an affiliate of the Company within or an Exchanging Dealer (as defined herein) not complying with the meaning requirements of the next sentence, (b) is not the Purchaser holding Securities Actthat have, or that are reasonably likely to have, the status of an unsold allotment in an initial distribution, (c) acquires the Exchange Securities in the ordinary course of such XxxxxxHolder's business and business, (d) has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities and (e) is not otherwise prohibited by any applicable law or policy of interpretations thereof by the Commission Commission's staff from participating in the Registered Exchange Offer) and to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States. The Company acknowledges Company, the Purchaser and each Exchanging Dealer acknowledge that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which that is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market market-making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALERExchanging Dealer"), is required to deliver a prospectus containing substantially the information set forth in (a) Annex A hereto on the cover, (b) in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, section and (c) in Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial if the Purchaser that elects to sell Exchange Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, the Purchaser is required to deliver a prospectus containing the information required by Items Item 507 or and Item 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale. The Company shall use its reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained thereinIf, in order to permit such prospectus to be lawfully delivered by all persons subject prior to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser Holder holds Initial any Securities acquired by it as part that have, or that are reasonably likely to be determined to have, the status of its an unsold allotment in an initial distribution, or any Holder is not entitled to participate in the Registered Exchange Offer, the Company, upon the request of any such Holder, simultaneously with the delivery of the Exchange Securities pursuant to in the Registered Exchange Offer, shall issue and deliver to any such Initial Purchaser upon the written request of such Initial PurchaserHolder, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such Initial PurchaserHolder (the "Private Exchange"), a like aggregate principal amount of debt securities of the Company issued under (the Indenture and "Private Exchange Securities") that are identical in all material respects to the Initial Securities (Exchange Securities, except for the "PRIVATE EXCHANGE SECURITIES")transfer restrictions relating to such Private Exchange Securities. The Initial Private Exchange Securities will be issued under the same indenture as the Exchange Securities, and the Exchange Securities and Company shall use commercially reasonable efforts to cause the Private Exchange Securities are herein collectively called to bear the "SECURITIES"same CUSIP number as the Exchange Securities. In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or longer, if required by applicable law) after the date on which notice thereof of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary (which may be the Trustee or an affiliate of the Trustee) for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable lawsto the Registered Exchange Offer. As soon as practicable after the close of the Registered Exchange Offer or the and any Private Exchange, as the case may be, the Company shall:
(xa) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yb) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(zc) cause the Trustee or the Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver promptly to each Holder of the Initial SecuritiesHolder, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein in order to permit such prospectus to be used by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers have sold all Exchange Securities held by them and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer. The Indenture will or the Exchange Securities Indenture, as the case may be, shall provide that the Securities, the Exchange Securities will not be subject to and the transfer restrictions set forth in the Indenture and that all the Private Exchange Securities will shall vote and consent together on all matters as one class and that none of the Securities, the Exchange Securities or the Private Exchange Securities will have the right to vote or consent as a separate class separate from one another on any matter. Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial SecuritiesApril 15, 2006. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, affiliate of the Company or or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will use its reasonable best efforts to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Telecorp PCS Inc /Va/)
