Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer; (c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange; (y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and (z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 5 contracts
Samples: Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can), Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can), Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 5 contracts
Samples: Registration Rights Agreement (Cheniere Energy Partners, L.P.), Registration Rights Agreement (Cheniere Energy Inc), Registration Rights Agreement
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5:00 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 5 contracts
Samples: Registration Rights Agreement (Cheniere Corpus Christi Holdings, LLC), Registration Rights Agreement (Cheniere Energy Partners, L.P.), Registration Rights Agreement (Cheniere Energy Partners, L.P.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5:00 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and and, other than as described in Section 9.02 of the Indenture, that all the Securities will vote and consent together on all matters as one classclass 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 5 contracts
Samples: Registration Rights Agreement (Sabine Pass Liquefaction, LLC), Registration Rights Agreement (Cheniere Energy Partners, L.P.), Registration Rights Agreement (Cheniere Energy Partners, L.P.)
Registered Exchange Offer. (a) Unless the Company determines, upon advice of its outside counsel, that it is not permitted or that it is not reasonably practical, to effect the Registered Exchange Offer as contemplated by applicable law or Commission (this Section 2, including scenarios that the Company could incur special interest as defined below) policydiscussed in Section 4 herein, and except as set forth in Section 3 herein, the CompanyCompany shall prepare, at its own cost, and, not later than 120 days following the Closing Date (or if such 120th day is not a Business Day, the next succeeding Business Day), shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities Act”), Statement with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6(d) 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 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 are registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and not later than 180 days after the Closing Date; provided, however, that the Company shall have the right to complete defer the Registered filing of the Exchange Offer within 360 Registration Statement (or suspend sales under the Exchange Offer Registration Statement or defer the updating of the Exchange Offer Registration Statement and suspend sales thereunder) for a period of not more than sixty (60) consecutive days (and, in the aggregate, not more than ninety (90) days) per any one calendar year period, if it determines that it would be materially detrimental to the Company to file such Exchange Offer Registration Statement or if continue sales under such Exchange Offer Registration Statement and concludes, as a result, that it is in the 360th day is not a business day, Company’s best interests and the first business day thereafter) after best interests of its stockholders to defer the date filing of original issue of the Initial Securities such Exchange Offer Registration Statement or suspend such sales at such time (the “Issue Date”) (such 360th day, or first business day thereafter, herein collectively referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration PeriodDeferral and Suspension Periods”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 .
(as defined in Section 6(dc) 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 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 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish to each Holder a copy of the prospectus Prospectus forming a part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(bii) keep commence and use its commercially reasonable efforts to consummate the Registered Exchange Offer within thirty (30) days from the date the Exchange offer Registration Statement was declared effective, and hold the Registered Exchange Offer open for not less than 20 business days twenty (20) Business Days (or longer, longer if required by applicable law) after the commencement date notice of the Registered Exchange OfferOffer is mailed to Holders;
(ciii) subject to the Exchange Offer Registration Statement Deferral and Suspension Periods, use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, supplemented and amended as required under the Act to ensure that it is available for sales of New Securities by Exchanging Dealers or the Initial Purchaser 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 in the City of New YorkOffer, which may be the United States Trustee or an affiliate any of the United States Trusteeits Affiliates;
(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; and
(evi) otherwise comply in all material 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 shall:
(xi) accept for exchange all of the Initial Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver to the Trustees Trustee for cancellation in accordance with Section 5(r) hereof all of the Initial Securities so accepted for exchange; and
(ziii) cause the Trustees 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 terms of the Initial Securities 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. Interest on each Exchange Security and Private Exchange Security issued pursuant to any 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 Xxxxxx Xxxxxxx and Co., Inc. (pub. Each avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Xxxxxxxx & 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 New 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 that, at the time of the consummation of the Registered Exchange Offer 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 brokerBroker-dealerDealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and New Securities; and
(vii) if such Holder is a brokerBroker-dealerDealer, that it will receive Exchange New 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 comply with the deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActNew Securities.
Appears in 4 contracts
Samples: Registration Rights Agreement (Kayne Anderson MLP Investment CO), Registration Rights Agreement (Kayne Anderson MLP Investment CO), Registration Rights Agreement (Kayne Anderson MLP Investment CO)
Registered Exchange Offer. Unless To the extent not permitted prohibited by any applicable law or Commission (as defined below) policy, interpretation of the Company, at its own cost, shall prepare and file with staff of the United States Securities and Exchange Commission (the “Commission”) ), the Company shall prepare, and use its commercially reasonable efforts to file with the Commission, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall (i) use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and on or prior to complete the Registered Exchange Offer within 360 365 days (or if the 360th 365th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”), (ii) (such 360th day, or first business day thereafter, herein referred to as soon as practicable after the “Consummation Deadline”) and to cause effectiveness of the Exchange Offer Registration Statement to remain effective continuously thereafter until Statement, offer the consummation Exchange Securities of each series in exchange for the Initial Securities of the Registered Exchange Offer. The Company shall relevant series and (iii) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that at the time of the commencement of the Registered Exchange Offer 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 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 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 required under set forth in (a) Annex B hereto on the Securities Act cover, (b) Annex C hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section and (c) Annex D 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 and (ii) if an Initial Purchaser that is permitted and elects to sell Exchange Securities 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 sale. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 (or such shorter period ending on the date on during which all Exchanging Participating Broker Dealers and the Initial Purchasers have sold all Exchange Securities held are required by them law to deliver such prospectus) (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus, 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, 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver or cause to be delivered to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 Securities, (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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement and (as defined in Section 2(avi) hereof)such Holder is not acting on behalf of any person who could not truthfully make the foregoing representations. Notwithstanding any other provisions hereof, the Company will shall use its commercially reasonable efforts to 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 4 contracts
Samples: Registration Rights Agreement (RenPac Holdings Inc.), Registration Rights Agreement (RenPac Holdings Inc.), Registration Rights Agreement (RenPac Holdings Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (along with any document or information incorporated by reference therein, the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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, Issuers issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to (a) cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days Act, (or if the 360th day is not a business day, the first business day thereafterb) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”) and (c) consummate the Registered Exchange Offer not later than 365 days after (or if the 365th day is not a business day, the first business day thereafter) the date of original issuance of the Initial Securities (the “Issue Date”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following As soon as reasonably practicable 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(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company either Issuer within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such 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; provided, however, that Participating Broker-Dealers (as defined below) receiving Exchange Securities in the Registered Exchange Offer will have a prospectus delivery requirement with respect to the resale of such Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 following the consummation of the Registered Exchange Offer and the period ending on 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) upon request the Company shall make such prospectus, 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 OfferOffer (or such shorter period in which such persons are required by applicable law to deliver such prospectus). 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, Issuers 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and or the Private Exchange, as the case may be;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 has no and will have no arrangements or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 applicable requirements of the Securities Act and the applicable 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. In addition; provided, however, that this paragraph shall not apply to any statements or omissions made by the Company may file Issuers in reliance upon and in conformity with information furnished to the Issuers by a Holder for use in any Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a any amendment thereto and any prospectus forming part thereof and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Actsupplement thereto.
Appears in 3 contracts
Samples: Registration Rights Agreement (PBF Energy Co LLC), Registration Rights Agreement (PBF Holding Co LLC), Registration Rights Agreement (PBF Energy Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed or electronically delivered to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish electronically deliver 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed or electronically delivered to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5:00 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 3 contracts
Samples: Registration Rights Agreement (Cheniere Energy Partners, L.P.), Registration Rights Agreement (Cheniere Corpus Christi Holdings, LLC), Registration Rights Agreement (Cheniere Energy Partners, L.P.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, 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"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 not later than 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s 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 '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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, 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”"). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass and that none of the Securities will have the right to vote or consent as a class separate from one another on any matter (except as may be provided in the Indenture with respect to votes and matters involving only certain but not all tranches of the 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 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 its business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “"affiliate,” " as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 3 contracts
Samples: Registration Rights Agreement (PPL Energy Supply LLC), Registration Rights Agreement (PPL Energy Supply LLC), Registration Rights Agreement (PPL Energy Supply LLC)
Registered Exchange Offer. Unless the Registered Exchange Offer would not be permitted by applicable law or Commission (as defined below) policy, the Company, at its own cost, shall prepare and file with policy of the United States Securities and Exchange Commission (the “Commission”), the Issuer and the Guarantors shall use commercially reasonable efforts to: (a) file with the Commission a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d7 hereof) 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 Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, issued under the Indenture and Indenture, identical in all material respects to the Initial Securities (except for the with respect to transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereofliquidated damages provisions) that are and registered under the Securities Act. The Company shall use its commercially reasonable efforts Act (the “Exchange Securities”); and (b) issue on or prior to cause the 365th day following the Closing Date (or, if such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day date is not a business dayBusiness Day (as defined below), on the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”next succeeding Business Day) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the ), Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of Securities in exchange for all Initial Securities tendered prior thereto in the Registered Exchange Offer. For purposes of this Agreement, “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the Borough of Manhattan, The Company shall keep the Registered Exchange Offer open for not less than 20 business days (City of New York, are authorized or longer, if required obligated by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”)law or executive order to close. Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being It is the objective of such the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuer within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such 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 Issuer 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 3 contracts
Samples: Registration Rights Agreement (United Rentals Inc /De), Registration Rights Agreement (United Rentals Inc /De), Registration Rights Agreement (United Rentals Inc /De)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall use its commercially reasonable efforts to, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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”, and together with the Initial Securities, the “Securities”) of the Company, Company issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 330 days (or if the 360th 330th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly The Company will use its commercially reasonable efforts to complete the Registered Exchange Offer not later than 360 days after the Issue Date. If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not properly withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange OfferOffer (but in any event not later than 30 days after such effectiveness), it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6(d) 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 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 StatesAct. 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 required under set forth in (a) Annex A hereto on the Securities Act cover, (b) Annex B hereto in the “Description of the Exchange Offer” or similar 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 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 efforts to keep the Exchange Offer Registration Statement effective, 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 Purchasera Dealer Manager, such period shall be the lesser of 180 90 days and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers Dealer Managers have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j3(h) 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 (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”). 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 or otherwise furnish send 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(dc) 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
(ed) 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 beOffer, the Company shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 for exchange. The terms of the Initial Securities 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. 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 Initial Securities being exchanged by such Holder, and any Exchange Securities received by such Holder Holder, have been or will be acquired in the ordinary course of business, (ii) such Holder is not engaged and does not intend to engage in and will have no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActSecurities.
Appears in 3 contracts
Samples: Registration Rights Agreement (At&t Inc.), Registration Rights Agreement (At&t Inc.), Registration Rights Agreement (At&t Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) the date it receives a written registration demand from Tontine or the holders of a majority of the Initial Securities (the “Demand Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 210 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue Demand Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects Tontine when electing to sell Exchange Securities 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, 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 PurchaserTontine, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers Tontine 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, 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 Tontine holds Initial Securities acquired by it as part of its initial distributionSecurities, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser Tontine upon the written request of such Initial PurchaserTontine, in exchange (the “Private Exchange”) for the Initial Securities held by such Initial PurchaserTontine, 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 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tontine Capital Partners L P), Registration Rights Agreement (Neenah Foundry Co)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 60 days after (or if the 60th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 7-3/8 % Senior Subordinated Notes due 2014 (the “"Exchange Securities”") of the Company, Company issued under the Indenture that would be registered under the Securities Act 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 are registered under the Securities Act). The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s '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 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, Securities (as defined below) 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 required under set forth in (a) Annex A hereto in the Securities Act foreportion thereof, (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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, prospectus and any amendment or supplement thereto, available to any broker-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, 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”"). 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 or otherwise furnish to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal (the "Letter of Transmittal") and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly properly tendered and not properly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange in accordance with the terms of the Exchange Offer Registration Statement and the Letter of Transmittal filed as an exhibit thereto;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, to each Holder of the Initial Securities equal in aggregate principal amount to the Initial Securities of such Holder so accepted for exchange. The terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Initial Securities, Exchange Securities and Private Exchange Securities will vote and consent together on all matters as one classclass and that none of the such 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 Exchange Security and Private Exchange Security will bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by the Initial Securities from time to time during such period. 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 or resale of the Securities or the Exchange Securities in violation of the Securities Act, (iii) such Holder is not an “"affiliate,” " as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, the Company will use its best efforts to 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Amida Industries Inc), Registration Rights Agreement (Amida Industries Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 6(d) hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. If the Company commences the Registered Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered tendered, and not withdrawn withdrawn, in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 States; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, 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”). 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 or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;; and
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Halcon Resources Corp), Registration Rights Agreement (Halcon Resources Corp)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall use its commercially reasonable efforts to prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 and identical in all material respects to the Initial Securities (except for the removal of transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and Act. The Company further agrees to complete use its commercially reasonable efforts to commence the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) promptly after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement becomes effective, to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep hold the Registered Exchange Offer open for not less than 20 business days (or longer, if the period required by applicable law) after law (including pursuant to any applicable interpretation by the commencement staff of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”Commission). Promptly after , but in any event for at least 20 business days, and exchange the Exchange Offer Registration Period, the Company shall accept Securities for all the Initial Securities validly tendered and not withdrawn before the expiration of the Registered Exchange Offer. If the Company commences the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer 20 business 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. 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 90 days and the period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is furnished to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 lawsrules and regulations of the Commission. 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities provide Indenture 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 classclass 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) at the time of 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 Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 Securities, (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 deliver a result of market-making activities or other trading activities and that it will comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement and (as defined in Section 2(avi) hereof)such Holder is not acting on behalf of any person who could not truthfully make the foregoing representations. 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 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Warner Music Group Corp.), Registration Rights Agreement (Warner Music Group Corp.)
Registered Exchange Offer. (a) Unless the Exchange Offer shall not permitted by be permissible under applicable law or Commission policy (as defined belowassuming the procedures set forth in Section 6(a) policyhereof have been complied with), or there are no Transfer Restricted Securities outstanding, each of the Issuers and the Guarantors shall (i) use its commercially reasonable efforts to file or cause to be filed with the Commission, a Registration Statement under the Securities Act relating to the Exchange Securities and the Exchange Offer on or prior to 455 days after the Closing Date (or if such 455th day is not a Business Day, the Companynext succeeding Business Day), at (ii) use its own costcommercially reasonable efforts to cause such Registration Statement to become effective on or prior to 545 days after the Closing Date (or if such 545th day is not a Business Day, shall prepare and file with the United States Securities and Exchange Commission next succeeding Business Day) (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities ActEffectiveness Date”), (iii) in connection with respect the foregoing, file (A) all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) if applicable, a proposed offer post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6(d) hereof), who are not prohibited by any law or policy registration and qualification of the Commission from participating in Exchange Securities to be made under the Registered state securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, to issue and deliver to (iv) upon the effectiveness of such HoldersRegistration Statement, in exchange for commence the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) Offer. Each of the Company, issued under the Indenture and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities Issuers and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities Act. The Company Guarantors shall use its commercially reasonable efforts to cause the Exchange Offer to be Consummated within 30 Business Days from the Effectiveness Date (or if such 30th day is not a Business Day, the next succeeding Business Day) (the “Exchange Date”). The Exchange Offer Registration Statement shall be on the appropriate form permitting registration of the Exchange Securities to become effective under be offered in exchange for the Transfer Restricted Securities Act and to complete permit resales of Transfer Restricted Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.
(b) The Issuers and the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and Guarantors shall use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to remain be effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company and shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under the Securities Act 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 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 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 period ending on 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 the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 30 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 date notice of the Exchange Securities pursuant Offer is mailed 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, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the “Private Exchange Securities”)Holders. The Initial Securities, Issuers shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Securities and shall be included in the Private Exchange Securities are herein collectively called the “Securities”. In connection with the Registered Exchange Offer, the Company shall:Offer Registration Statement.
(ac) mail or otherwise furnish to each Holder The Issuers shall indicate in a copy “Plan of Distribution” section contained in the prospectus Prospectus forming a 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Statement that any Broker-Dealer who holds Transfer Restricted 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 were 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with (other than Transfer Restricted Securities acquired directly from the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”Issuers), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in exchange such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Transfer Restricted Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.pursuant to
Appears in 2 contracts
Samples: Registration Rights Agreement (Interface Security Systems, L.L.C.), Registration Rights Agreement (Interface Security Systems Holdings Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Issuers shall, at its their own cost, shall prepare and and, on or prior to the 120th day after the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 and guaranteed by the Guarantors issued under the 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 are would be registered under the Securities Act. The Company Issuers shall use its their commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and on or prior to complete the Registered Exchange Offer within 360 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Date and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days and not longer than 40 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly If the Issuers effect the Registered Exchange Offer, the Issuers will be entitled to close the Registered Exchange Offer 30 days after the Exchange Offer Registration Periodcommencement thereof, provided that the Company shall accept Issuers have accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of 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 (as defined in Section 6(d) 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuers within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such HolderXxxxxx’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 Issuers 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 Issuers shall use its their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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 Issuers shall make such prospectus, 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 CompanyIssuers, 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, 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”). 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 otherwise furnish 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 20 business 30 days and not longer than 40 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 Issuers shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 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, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, of the Company, Issuers 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (iPCS, INC), Registration Rights Agreement (iPCS, INC)
Registered Exchange Offer. (a) Unless the Exchange Offer shall not permitted by be permissible under applicable law or Commission policy (as defined belowafter the procedures set forth in Section 6(a) policyhereof have been complied with), each of the Company, at Company and the Guarantors will use its own cost, shall prepare and commercially reasonable efforts to file with the United States Securities and Exchange Commission Commission, within 365 days after the Closing Date (or if such 365th day is not a Business Day, the next succeeding Business Day) (such day, the “CommissionFiling Target Date”) ), a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933,” and such offer, 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(d) hereof), who are not prohibited by any law or policy and all of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange Securities for the Initial Securities, a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of the Indenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain provisions for Additional Interest as contemplated in Section 5 below (such new debt securities hereinafter called “Exchange Securities”) ). Each of the CompanyCompany and the Guarantors will use its commercially reasonable efforts to have the Exchange Offer Registration Statement declared effective by the Commission within 90 days after the Filing Target Date (or if such 90th day is not a Business Day, issued the next succeeding Business Day) (such 90th day, the “Effectiveness Target Date”). Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company will (i) commence the Exchange Offer promptly following the Effective Time of such Exchange Offer Registration Statement and (ii) use its commercially reasonable efforts to issue on or prior to 45 Business Days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities in exchange for all Registrable Securities tendered prior thereto in the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting registration of the Exchange Securities to be offered in exchange for the Registrable Securities and to permit resales of Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.
(b) The Company and the Guarantors shall cause the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Indenture and identical Exchange Offer; provided, however, that in all material respects no event shall such period be less than 20 days after the date notice of the Exchange Offer is mailed to the Initial Holders. The Company shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Securities (except for shall be included in the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities ActExchange Offer Registration Statement. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation be Consummated within 45 Business Days of the Registered Effectiveness Target Date (such date, the “Exchange Offer. Date”).
(c) The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement indicate in a “Plan of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Distribution” section contained in the ordinary course of such 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 staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is Prospectus forming 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at Statement that 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 of the Broker-Dealer who holds Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial that are Registrable Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 were 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 (other than Registrable Securities acquired directly from the Company), may exchange such Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and that it will comply with must, therefore, deliver a prospectus meeting the prospectus delivery requirements of the Securities Act in connection with any resale resales of such the Exchange Securities received by delivering such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of Initial Securities held by any such Broker-Dealer except to the extent required by the Commission as a prospectus included result of a change in an effective Registration Statement (as defined in Section 2(a) hereof)policy after the date of this Agreement. Notwithstanding any other provisions hereof, Each of the Company will ensure that (i) any and the Guarantors shall use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and any amendment thereto amended as required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of Initial Securities acquired by Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and any prospectus forming part thereof and any supplement thereto complies in all material respects to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, 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 Commission as announced from time to time, for a period ending on the earlier of (i) 180 days from the date on which they were made, not misleading. In addition, the Company may file the Exchange Offer Registration Statement pursuant is declared effective and (ii) the date on which a Broker-Dealer is no longer required to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file deliver a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement connection with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commissionmarket-making or other trading activities. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission The Company shall provide sufficient copies of the notification latest version of clearance by such Prospectus to Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the applicable Canadian securities regulatory authorities and may not be subject foregoing sentence) period in order to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in facilitate such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Actresales.
Appears in 2 contracts
Samples: Registration Rights Agreement (Infor, Inc.), Registration Rights Agreement (Infor, Inc.)
Registered Exchange Offer. (a) Unless a Registered Exchange Offer shall not permitted be permissible by applicable law or Commission (as defined below) policy, the Company, at its own cost, Company and the Guarantor shall use their respective reasonable best efforts to (i) prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities Act”), Statement with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6(d) 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 (ii) cause the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, issued under the 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 are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete commence the Registered Exchange Offer within 360 days promptly after such effectiveness and (or iii) keep the Exchange Offer Registration Statement effective until the closing of the Registered Exchange Offer and (iv) cause the Registered Exchange Offer to be consummated not later than the 360th calendar day following the Closing Date (or, if the such 360th day is not a business dayBusiness Day, the first business day thereafternext succeeding Business Day) after the date of original issue of the Initial Securities (the “Issue Exchange Date”).
(b) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate Affiliate of the Company within or the meaning of the Securities ActGuarantor, acquires the Exchange Securities in the ordinary course of such Holder’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 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, .
(ic) 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days Business Days after the date notice thereof is mailed to the Holders (or longer, longer if required by applicable law) after the commencement of the Registered Exchange Offer);
(ciii) use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, supplemented and amended as required, under the Act to ensure that it is available for sales of Exchange 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 in the City of New YorkOffer, which may be the United States Trustee or an affiliate Affiliate of the United States 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, if requested by the staff of the Commission, provide a supplemental letter to the Commission (A) stating that the Company and the Guarantor 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 Company and the Guarantor have 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 and the Guarantor’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
(evii) otherwise comply in all material 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 and the Guarantor shall:
(xi) accept for exchange all of the Initial Securities validly properly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private Exchangeon or prior to its expiration;
(yii) deliver or cause to be delivered to the Trustees Trustee for cancellation in accordance with Section 4(q) all of the Initial Securities so accepted for exchange; and
(ziii) cause the Trustees Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Securities a principal amount of Exchange Securities or Private Exchange Securities, as equal to the case may be, equal in principal amount to of the Initial Securities of such Holder so accepted for exchange. The terms of the Initial Securities 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. Interest on each Exchange Security and Private Exchange Security issued pursuant to any 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 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 LLP 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 Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company, the Guarantor or one of their respective Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that and the Guarantor that, at the time of the consummation of the Registered Exchange Offer 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 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, ; and
(iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, Affiliate of the Company, 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, Guarantor.
(ivf) if such Holder is not a broker-dealer, If any Initial Purchaser determines that it is not engaged inprohibited by law or Commission policy from participating in the Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, and does not intend to engage inat the request of such Initial Purchaser, the distribution of Company and the Exchange Guarantor shall issue and deliver to the person purchasing Securities and (v) if registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Holder is a broker-dealerInitial Purchaser, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as such Securities, a result like principal amount of market-making activities or other trading activities and that it will comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActSecurities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Nii Holdings Inc), Registration Rights Agreement (Nii Holdings Inc)
Registered Exchange Offer. (a) Unless the Exchange Offer shall not permitted by be permissible under applicable law or Commission policy (as defined belowafter the procedures set forth in Section 6(a) policyhereof have been complied with), each of the Company, at Companies and the Guarantors will use its own cost, shall prepare and commercially reasonable efforts to file with the United States Securities and Exchange Commission Commission, within 365 days after the Closing Date (or if such 365th day is not a Business Day, the next succeeding Business Day) (such 365th day, the “CommissionFiling Target Date”) ), a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933,” and such offer, 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(d) hereof), who are not prohibited by any law or policy and all of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange Securities for the Initial Securities, a like aggregate principal amount of debt securities issued by the Companies and guaranteed by the Guarantors, which debt securities and guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of the Indenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain provisions for Additional Interest contemplated in Section 5 below (such new debt securities hereinafter called “Exchange Securities”) ). Each of the Company, issued under the Indenture and identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities Companies and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities Act. The Company shall Guarantors will use its commercially reasonable efforts to cause have the Exchange Offer Registration Statement declared effective by the Commission within 90 days after the Filing Target Date (or if such 90th day is not a Business Day, the next succeeding Business Day) (such 90th day, the “Effectiveness Target Date”). Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Companies will (i) commence the Exchange Offer promptly following the Effective Time of such Exchange Offer Registration Statement and (ii) use their commercially reasonable efforts to become effective under the Securities Act and issue on or prior to complete the Registered Exchange Offer within 360 days (45 Business Days, or longer, if the 360th day is not a business dayrequired by applicable securities laws, the first business day thereafter) after the date of original issue on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Notes in exchange for all Registrable Securities tendered prior thereto in the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting registration of the Initial Exchange Securities (to be offered in exchange for the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Registrable Securities and to permit resales of Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.
(b) The Companies and the Guarantors shall cause the Exchange Offer Registration Statement to remain be effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company and shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under the Securities Act 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 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 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 period ending on 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 the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 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 date notice of the Exchange Securities pursuant Offer is mailed 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, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the “Private Exchange Securities”)Holders. The Initial Securities, Companies shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Securities and shall be included in the Private Exchange Securities are herein collectively called Offer Registration Statement. The Companies shall use their commercially reasonable efforts to cause the Exchange Offer to be Consummated within 45 Business Days of the Effectiveness Target Date (such date, the “SecuritiesExchange Date”. In connection with the Registered Exchange Offer, the Company shall:).
(ac) mail or otherwise furnish to each Holder The Companies shall indicate in a copy “Plan of Distribution” section contained in the prospectus Prospectus forming a 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at Statement that 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 of the Broker-Dealer who holds Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial that are Registrable Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 were 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 (other than Registrable Securities acquired directly from the Companies), may exchange such Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and that it will comply with must, therefore, deliver a prospectus meeting the prospectus delivery requirements of the Securities Act in connection with any resale resales of such the Exchange Securities received by delivering such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of Initial Securities held by any such Broker-Dealer except to the extent required by the Commission as a prospectus included result of a change in an effective Registration Statement (as defined in Section 2(a) hereof)policy after the date of this Agreement. Notwithstanding any other provisions hereof, Each of the Company will ensure that (i) any Companies and the Guarantors shall use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and any amendment thereto amended as required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of Initial Securities acquired by Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and any prospectus forming part thereof and any supplement thereto complies in all material respects to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, 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 Commission as announced from time to time, for a period ending on the earlier of (i) 180 days from the date on which they were made, not misleading. In addition, the Company may file the Exchange Offer Registration Statement pursuant is declared effective and (ii) the date on which a Broker-Dealer is no longer required to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file deliver a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement connection with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commissionmarket-making or other trading activities. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission The Companies shall provide sufficient copies of the notification latest version of clearance by such Prospectus to Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the applicable Canadian securities regulatory authorities and may not be subject foregoing sentence) period in order to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in facilitate such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Actresales.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission policy (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the CompanyCompany and the Guarantors shall, at its their own cost, shall prepare and and, not later than 180 days (or if the 180th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are which would be registered under the Securities Act. The Company and the Guarantors shall use its their respective commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) Date (such 360th day, 270th day (or first business day thereafter), herein referred to as the an “Consummation Deadlineeffectiveness deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i), on behalf of itself and the Guarantors, will be entitled to close the Registered Exchange Offer 30 days after such commencement provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) shall use commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement is declared effective (or if the 40th day is not a business day, the first business day thereafter) (such 40th day (or first business day thereafter) being the “Consummation Deadline”). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company Company, on behalf of itself 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 (as defined in Section 6(d) 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 Holder’s business 's business, is not a broker-dealer tendering Initial Securities acquired directly from the Company for its own account and 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 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 '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 market-making activities or other trading activities, for Exchange Securities (an “"Exchanging Dealer”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 and the Guarantors shall use its their respective commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, effective and to amend and supplement the prospectus contained therein, 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 period ending on 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, 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, on behalf of itself and the Guarantors and 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, 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”"). 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 Company, on behalf of itself and the Guarantors, shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 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 under of the Securities Act, of the Company, 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, dealer tendering Initial Securities acquired directly from the distribution of the Exchange Securities Company for its own account and (viv) 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 comply with the acknowledges its obligations to deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In additionIf 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 may file and the Guarantors will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer Registration Statement pursuant Offer. The Company and the Guarantors will pursue the issuance of such a decision to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under Commission staff level. In connection with the Canadian and U.S. shelf offering procedures. Under MJDSforegoing, the Company and the Guarantors will take all such other actions as may file a prospectus and a prospectus supplement, if applicable, to be contained requested by the Commission or otherwise required in such registration statement connection with the applicable securities regulatory authorities issuance of such decision, including without limitation (i) participating in Canada and concurrently file the registration statement telephonic conferences with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery , (ii) delivering to the Commission of staff an analysis prepared by counsel to the notification of clearance 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 applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActCommission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Wendy's/Arby's Group, Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and, not later than 180 days (or if the 180th day is not a business day, the first business day thereafter) (such 180th day or the first business day thereafter being an “Exchange Offer Filing Deadline”) after the date of original issue of the Initial Securities and the Accredited Investor Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) hereof)the Initial Securities, 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 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) and that are would be registered under the 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 and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) Date (such 360th day, 270th day (or the first business day thereafter, herein referred to as the ) being an “Consummation Effectiveness Deadline”) and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) shall consummate the Registered Exchange Offer no later than 40 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement is declared effective (or if the 40th day is not a business day, the first business day thereafter) (such day being the “Consummation Deadline”) by the Commission. 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 the Initial Securities (as defined in Section 6(d) 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 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 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 the 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 the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an if the Initial Purchaser that elects Purchasers elect to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is allotment, they are 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, 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 any Initial Purchaser, such period shall be the lesser of 180 90 days and the period ending on 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, 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, 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”). The Initial Securities, the Accredited Investor 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 or otherwise furnish to each Holder of Initial 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Rotech Healthcare Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policylaw, the CompanyCompany shall, at its own cost, shall prepare and and, not later than 350 days (or if the 350th day is not a business day, the first business day thereafter) after December 24, 2012 (the “Existing Notes Closing Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 Offered Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, Company issued under the Indenture and identical in all material respects to the Initial Offered Securities (except for the removal of transfer restrictions relating to the Initial Offered Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 410 days (or if the 360th 410th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities Existing Notes Closing Date (the an “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadlineeffectiveness deadline”) and shall use its commercially reasonable efforts to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 20 business days after such commencement provided that the Company has accepted all the Initial Offered Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) shall use commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement is declared effective (or if the 40th day is not a business day, the first business day thereafter) (such 40th day (or first business day thereafter) 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(d) hereof) electing to exchange the Initial Offered 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 Holder’s business business, is not a broker-dealer tendering Offered Securities acquired directly from the Company for its own account and 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 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 Offered 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial if a Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Offered 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 sale. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 a Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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 Offered 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 Offered 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 Offered Securities (the “Private Exchange Securities”). The Initial Offered 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 in all material respects with all applicable lawsrespects. 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Offered Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Offered Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Offered Securities of such Holder so accepted for exchange. The terms of the Initial Securities provide Indenture 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 classclass 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 Offered Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Offered Securities, from the date of original issue of the Initial SecuritiesJuly 15, 2013. 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 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 distribution of the Offered Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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, dealer tendering Offered Securities acquired directly from the distribution of the Exchange Securities Company for its own account and (viv) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Offered Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the acknowledges its obligations to deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Harbinger Group Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the Company, at its own cost, Company and the Guarantors shall prepare and and, not later than 240 days (or if the 240th day is not a business day, the first business day thereafter) (such 240th day or first business day thereafter being an “Exchange Offer Filing Deadline”) after the date on which the Initial Securities are first issued (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities Act”), with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of Initial Securities that are Transfer Restricted Securities (as defined in Section 6(d) 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 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) and that are would be registered under the Securities Act. The Company and the Guarantors shall use its their commercially reasonable efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete within 300 days after the Registered Exchange Offer within 360 days Issue Date (or if the 360th 300th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, 300th (or first business day thereafter, herein referred to as the ) day being an “Consummation Effectiveness Deadline”) and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer, the Company, on behalf of itself and the Guarantors, (i) will be entitled to consummate the Registered Exchange Offer Registration Period, 30 days after such commencement (provided that the Company shall accept has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer) and (ii) shall use commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement is declared effective (or if the 40th day is not a business day, the first business day thereafter), but in any event no later than 340 days after the Issue Date (such 340th day (or longer if required by applicable law) being the “Consummation Deadline”) by the Commission. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company on behalf of itself 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 (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company or the Guarantors within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act cover of such prospectus, (b) Annex B hereto in the “Exchange Offer Procedures” section and the “Purpose of the Exchange Offer” section of such prospectus, 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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 the initial distribution, the Company, on behalf of itself and the Guarantors and 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, 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”). 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 on behalf of itself and the Guarantors shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 have been 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the acknowledge its obligations to deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In additionIf 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 may file and the Guarantors will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer Registration Statement pursuant Offer. The Company and the Guarantors will pursue the issuance of such a decision to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under Commission staff level. In connection with the Canadian and U.S. shelf offering procedures. Under MJDSforegoing, the Company and the Guarantors will take all such other actions as may file a prospectus and a prospectus supplement, if applicable, to be contained requested by the Commission or otherwise required in such registration statement connection with the applicable securities regulatory authorities issuance of such decision, including without limitation (i) participating in Canada and concurrently file the registration statement telephonic conferences with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery , (ii) delivering to the Commission of staff an analysis prepared by counsel to the notification of clearance 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 applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActCommission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Ply Gem Holdings Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policylaw, the CompanyCompany shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) (such 90th day, or the first business day thereafter, being a “Filing Deadline”) after the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities ActAct (the “Exchange Securities”). The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 days (or if the 360th 180th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th 180th day, or the first business day thereafter, herein referred to as the being an “Consummation Effectiveness Deadline”) after the Issue Date of the Initial Securities and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof (provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer not later than 40 days (or if the 40th day is not a business day, the first business day thereafter) (such 40th day, or the first business day thereafter, the “Consummation Deadline”) after the date on which the Exchange Offer Registration Statement is declared effective. 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(d) 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 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 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 or dealer registered under the Exchange Act (a “broker-dealer 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial a Purchaser that elects to sell Private Exchange Securities 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, 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 a Purchaser, such period shall be the lesser of 180 days (or such shorter period during which such person is required by applicable law to deliver such prospectus) and the period ending on 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, 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 effective date of the Registered Exchange OfferOffer Registration Statement (or such shorter period during which such persons are required by applicable law to deliver such prospectus). 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, 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation cancelation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 its business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Exchange Securities (within the meaning of the Securities Act) of the Exchange Securities, (iii) such Holder is not an “affiliate,” , as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Commercial Vehicle Group, Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the Company, at The Company shall use its own cost, shall best efforts to prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States Securities Act of 1933, as amended 1933 (the “"Securities Act”"), with respect to a proposed an offer (the “"Registered Exchange Offer”") to the Holders of Transfer Restricted Securities Notes (as defined in Section 6(d) 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 (the “"Exchange Securities”Notes") of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereofNotes) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days Business Days (or as defined in the Indenture)(or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 Business Days after the commencement thereof provided that the Company has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) hereof) Notes electing to exchange the Initial Securities such Transfer Restricted 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 Holder’s 's business and has no arrangements 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. In connection with such Registered Exchange Offer, the Company shall use its best efforts to consummate the Registered Exchange Offer and shall comply with the applicable requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and other applicable laws and regulations in connection with the Registered Exchange Offer. The Company acknowledges and the Purchasers 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 Holder, including any Purchaser, 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 Dealer”"), is required to deliver a prospectus containing the information required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and 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 and (ii) an Initial Purchaser that elects if the Purchasers are permitted to and elect to sell Exchange Securities Notes acquired in exchange for Initial Securities Notes constituting any portion of an unsold allotment is allotment, they are 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 also shall include within the prospectus contained in the Exchange Offer Registration Statement statements as are currently customary to be contained therein, reasonably acceptable to the Purchasers, summarizing the positions taken or policies made by the staff of the Commission with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Registered Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Purchasers based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by the Purchasers and all persons Exchanging Dealers subject to the prospectus delivery requirements of the Securities Act and shall make such prospectuses available to the Purchasers and such Exchanging Dealers for such period of time after the consummation of the Registered Exchange Offer as such persons must comply with such requirements in order to resell the Exchange SecuritiesNotes; 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 not exceed 180 days and the period ending on 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) ); PROVIDED FURTHER, HOWEVER, that such persons shall not be authorized by the Company to deliver and (ii) shall not deliver any such prospectus after the expiration of such period in connection with the resales contemplated by this paragraph. The Company shall make such available for a period of 90 days after the consummation of the Registered Exchange Offer, a copy of the prospectus, and any amendment or supplement thereto, available forming part of the Exchange Offer Registration Statement 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 OfferNotes. 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 Notes and 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, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the “Private Exchange Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities Notes are herein collectively called the “"Securities”". In connection with the Registered Exchange Offer, the Company shall:
(a) mail or otherwise furnish 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 20 business days Business Days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in Manhattan, the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities Notes 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 beOffer, the Company shall:
(xi) accept for exchange all of the Initial Securities Notes validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(yii) deliver deliver, or cause to be delivered, to the Trustees Trustee for cancellation all of the Initial Securities Notes so accepted for exchange; and
(ziii) issue, and cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial SecuritiesNotes, Exchange Securities or Private Exchange Securities, as the case may be, Notes equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The terms of the Initial Securities Indenture will provide that the Exchange Securities Notes will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities Exchange Notes and the Notes will vote and consent together on all matters as one classclass and that none of the Exchange Notes or the Notes 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 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 SecuritiesNotes. 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 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 under of the Securities Act, of the Company, 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 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Notes. 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 the 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, at the time of issuance 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 60 days (or if such 60th day is not a business day, the first business day thereafter) (such 60th day being the "EXCHANGE OFFER FILING DEADLINE") after the date of original issue of the Initial Securities (the "ISSUE DATE"), file with the United States 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 United States 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(d) 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”"EXCHANGE SECURITIES") of the Company, Company issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 155 days (or if the 360th such 155th day is not a business day, the first business day thereafter) (such 155th day being the "EXCHANGE OFFER EFFECTIVENESS DEADLINE") after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such 30-day period being called the “Exchange Offer Registration Period”"EXCHANGE OFFER REGISTRATION PERIOD"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer 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(d) 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 Holder’s '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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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”"PRIVATE 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 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 otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Finlay Enterprises Inc /De)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined belowa) policy, the CompanyMTGA shall, at its own cost, shall use commercially reasonable efforts to prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 (the “Exchange Securities”Notes;” references herein to the “Exchange Notes” include the Subsidiary Guarantees thereof) of the Company, MTGA issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities Notes and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company MTGA shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue date of the Initial Securities Notes (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company MTGA 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 (as defined in Section 6(d) 6 hereof) electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Company MTGA within the meaning of the Securities Act, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements 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 Notwithstanding any provision hereof, MTGA shall not be required to take any of the aforementioned actions under this Section 1(a) if the Registered Exchange Offer shall not be permissible under applicable law or policy of the Commission.
(b) If an Exchange Offer Registration Statement is required to be filed and declared effective pursuant to Section 1(a) above, MTGA shall use commercially reasonable efforts to (i) keep the Exchange Offer Registration Statement effective for not less than 20 business day (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”), (ii) close the Registered Exchange Offer only after accepting all the Initial Notes theretofore validly tendered in accordance with the terms of the Registered Exchange Offer issue and (iii) on or prior to 30 business days after the date on which the Exchange Offer Registration Statement was declared effective by the Commission (such 30th business day, the “Consummation Deadline”), issue the Exchange Notes in respect of all Initial Notes accepted in the Registered Exchange Offer. MTGA 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 Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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 Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer, and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 MTGA shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 SecuritiesNotes; 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 PurchaserDealer, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities Notes held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company MTGA shall make such prospectus, 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 Notes during such 180-day (or shorter as provided in 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”foregoing provision) 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”)period. The Initial Securities, Notes and the Exchange Securities and the Private Exchange Securities Notes are herein collectively called the “Securities”. .” In connection with the Registered Exchange Offer, the Company shallMTGA shall use commercially reasonable efforts (except with respect to clause (d)) to:
(a) mail or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(dc) 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
(ed) use its reasonable best efforts to 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 ExchangeOffer, as the case may be, the Company MTGA shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities Notes so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder (or to the appropriate depositary, for notes in book-entry form) of the Initial Securities, Notes or Exchange Securities 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 terms of the Initial Securities 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. 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 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 SecuritiesMarch 1, 2015. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company MTGA 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 does not have and will not have no arrangements 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, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, MTGA 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 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 Notes. Each applicable Holder (i) shall be required to acknowledge and agree that any broker-dealer and any such holder using the Registered Exchange Offer to participate in a distribution of the securities to be acquired in the Registered Exchange Offer could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any a secondary resale of transaction and that such Exchange Securities a secondary resale transaction should be covered by delivering a prospectus included in an effective Registration Statement (registration statement containing the selling security holder information required by Item 507 and 508, as defined applicable, of Regulation S-K if the resales are of Exchange Notes obtained by such Holder in Section 2(a) hereof)exchange for Initial Notes acquired by such Holder directly from MTGA. Notwithstanding any other provisions hereof, the Company MTGA will use its reasonable best efforts to 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. In addition, the Company may file the Exchange Offer Registration Statement provided, that MTGA assumes no responsibility pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be this paragraph for any untrue statement or omission to state a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, material fact insofar as such untrue statement or omission is based upon or derived from information furnished to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission MTGA by any of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActHolders specifically for inclusion therein.
Appears in 1 contract
Samples: Registration Rights Agreement (Mohegan Tribal Gaming Authority)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 210 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “"Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”") and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after The Company will take all actions that are necessary under the applicable laws of Mexico in order to carry out and consummate the Registered Exchange Offer, including, without limitation, the filing of documents and the registration of the Exchange Offer Registration PeriodSecurities in the Special Section (Seccion Especial) of Mexico's National Securities Registry (Registro Nacional de Valores) of the National Banking and Securities Commission (Comision Nacional Bancaria y de Valores). If the Company effects the Registered Exchange Offer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s 's business and has no arrangements with any person to participate partixxxxxx 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”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an if the Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities constituting any portion of an unsold allotment is will be 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, 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 the Initial Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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 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”") for the Initial Securities held by such the 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 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 To the extent applicable, 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Installations & Hirings LTD)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and and, other than as described in Section 9.02 of the Indenture, that all the Securities will vote and consent together on all matters as one classclass 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Cheniere Energy Partners, L.P.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business dayBusiness Day, the first business day Business Day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days Business Days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (is mailed or electronically delivered to the Holders. As used in this Agreement, “Business Day” has the meaning given to such period being called the “Exchange Offer Registration Period”). Promptly after term in Rule 14d-1(g)(3) under the Exchange Offer Registration PeriodAct. If the Company effects the Registered Exchange Offer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 Business Days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 HolderXxxxxx’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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Cheniere Energy, Inc.)
Registered Exchange Offer. (a) Unless the Exchange Offer shall not permitted by be permissible under applicable law or Commission policy (as defined belowafter the procedures set forth in Section 6(a) policyhereof have been complied with), the Company shall (i) cause to be filed with the Commission no later than 60 days after the Closing Date (or if such 60th day is not a Business Day, the next succeeding Business Day), a Registration Statement under the Securities Act relating to the Exchange Notes and the Exchange Offer, (ii) use its commercially reasonable efforts to cause such Registration Statement to become effective no later than 120 days after the Closing Date (or if such 120th day is not a Exhibit 4.3
(b) The Company shall use commercially reasonable efforts to cause the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days after the date notice of the Exchange Offer is mailed (or, with respect to Initial Notes held in book entry form through the Depository Trust Company, at its own cost, shall prepare and file distributed to the Holders in accordance with the United States Securities applicable procedures of the Depository Trust Company) to the Holders. The Company shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Commission (Notes shall be included in the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) be Consummated as promptly as reasonably practicable after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less has become effective, but in no event later than 20 business 45 days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness effective date of the Exchange Offer Registration StatementStatement (or if such 45th day is not a Business Day, 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 next succeeding Business Day).
(as defined in Section 6(dc) 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 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 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 required under the Securities Act 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 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 efforts to keep the Exchange Offer Registration Statement effective, and to amend and supplement the prospectus indicate in a “Plan of Distribution” section 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 period ending on 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 Prospectus forming 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at Statement that 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 of the Broker-Dealer who holds Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities provide Notes that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture are Transfer Restricted Notes and that all the Securities will vote and consent together on all matters as one class. 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 were 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 (other than Transfer Restricted Notes acquired directly from the Company), may exchange such Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and that it will comply with must, therefore, deliver a prospectus meeting the prospectus delivery requirements of the Securities Act in connection with any resale resales of the Exchange Notes received by such Broker-Dealer in the Exchange Securities Offer, which prospectus delivery requirement may be satisfied by delivering a prospectus included the delivery by such Broker-Dealer of the Prospectus contained in an effective Registration Statement (as defined in Section 2(a) hereof). 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 . Such “Plan of Distribution” section shall also contain all other information with respect 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 resales by Broker-Dealers that the Commission may require in order to make permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the statements therein, in the light amount of the circumstances under which they were made, not misleading. In addition, the Company may file the Exchange Offer Registration Statement pursuant Initial Notes held by any such Broker-Dealer except to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review extent required by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, The Company and the CompanyGuarantors shall, at its their own cost, shall prepare and use commercially reasonable efforts to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company and the Guarantors shall use its all commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 310 days (or if the 360th 310th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 30 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company and the Guarantors effect the Registered Exchange Offer Registration PeriodOffer, the Company shall accept and the Guarantors will close the Registered Exchange Offer and issue the Exchange Securities for all of the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer on or prior to 30 business days after the commencement thereof (or longer, if required by applicable law). 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 (as defined in Section 6(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 the Initial PurchaserPurchasers, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Dealers and the an 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 and the Guarantors shall make such prospectus, 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 CompanyCompany and the Guarantors, 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, 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 and the Guarantors shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all of the Securities will vote and consent together on all matters as one classclass 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 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 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 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, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (along with any document or information incorporated by reference therein, the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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, Issuer issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 330 days (or if the 360th 330th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after For purposes of this Agreement, “business day” shall mean a day other than a Saturday, Sunday or other day on which banking institutions are authorized or required by law to close in New York City. If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof (or longer, if required by applicable law, or if the 30th day is not a business day, the first business day thereafter) provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, acquires the Exchange Securities in the ordinary course of such Holder’s business and at the time of the commencement of the Registered Exchange Offer it has no arrangements or understandings with any person to participate in the distribution of the Exchange Securities within the meaning of the Securities Act 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; provided, however, that Participating Broker-Dealers (as defined below) receiving Exchange Securities in the Registered Exchange Offer will have a prospectus delivery requirement with respect to the resale of such Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 following the consummation of the Registered Exchange Offer and the period ending on 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, prospectus and any amendment or supplement thereto, thereto available upon request 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 OfferOffer (or such shorter period in which such persons are required by applicable law to deliver such prospectus). 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, Issuer 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and or the Private Exchange, as the case may be;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and and, except as set forth in Section 9.07 of the Indenture, that all the Securities will vote and consent together on all matters as one classclass 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 Exchange, respectively, 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 in writing 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Gulfport Energy Corp)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 365 days (or if the 360th 365th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly If the Company effects the Registered Exchange Offer, the Company will use all commercially reasonable efforts to 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 PeriodStatement 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; provided that the Company shall accept has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer (such 30th business 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(d) 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 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 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 90 days and the period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture as one class and that all none of the Securities will have the right to vote and or consent together as a class separate from one another on all matters as one classany 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Western Refining, Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than August 9, 2005, file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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, Issuers issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act on or prior to November 7, 2005 and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, Issuers 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Petroquest Energy Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policylaw, the CompanyCompany shall, at its own cost, shall prepare and and, not later than 90 days (or if the 90th day is not a business day, the first business day thereafter) (such 90th day or next succeeding business day being a “Filing Deadline”) after the date of original issue of the Initial Securities pursuant to the Purchase Agreement (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are and registered under the 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 and to complete the Registered Exchange Offer within 360 180 days (or if the 360th 180th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the such 180th day being an “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Effectiveness Deadline”) and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof, provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer, and (ii) will be required to use its reasonable best 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 (as defined in Section 6(d) 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 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 Act, and to the extent required in accordance with Section 3(h), 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 after the expiration date of the Registered Exchange Offer and the period ending on 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, 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 expiration date 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, 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission the Registered Exchange Offer (as defined below) policy, would violate applicable law or interpretation of the Company, at its own cost, shall prepare and file with staff of the United States Securities and Exchange Commission (the “Commission”) the Company shall, at its own cost, use its best efforts to prepare, 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”), file with the Commission a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof (or longer, if required by applicable law) provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following Promptly 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(d) 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 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; provided, however, that Participating Broker-Dealers (as defined below) receiving Exchange Notes in the Registered Exchange Offer will have a prospectus delivery requirement with respect to the resale of such Exchange Notes. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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 OfferOffer (or such shorter period which such persons are required by applicable law to deliver such prospectus). 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, 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 payment of liquidated damages as described in Section 6 hereof) 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use all commercially reasonable best efforts to, not later than 120 days (or if the 120th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States Securities Act of 1933, as amended (the “"Securities Act”"), with respect to a proposed offer (the “"Registered Exchange Offer”") to the those Holders of Initial Securities that are Transfer Restricted Securities (as defined in Section 6(d6 hereof) hereof), who are not prohibited by any law or policy of interpretation of the Commission or its staff 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 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 are would be registered under the Securities Act. The Company shall use its all commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 210 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 10 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after For purposes hereof, "business day" shall mean any day other than a Saturday or Sunday, and other than a holiday on which the Commission shall not be open for the transaction of business. If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer on the last day of the Exchange Offer Registration Period, provided that the Company shall accept has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 Offer, subject to the terms and conditions hereof, to enable each Holder of Initial Securities that are Transfer Restricted Securities (as defined in Section 6(d) 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 Holder’s '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 or interpretation of the Commission or its staff 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 and the Lenders 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 SecuritiesSecurities in the Registered Exchange Offer, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an “Exchanging a "Participating Broker-Dealer”"), is required to deliver a prospectus containing information substantially to the information required under effect set forth in Annex A hereto, Annex B hereto and Annex C hereto in the Securities Act appropriate sections of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Participating Broker-Dealer pursuant to the Registered Exchange Offer, Offer and (ii) an Initial Purchaser a Lender that elects to sell Private 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, effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons dealers subject to the prospectus delivery requirements of Section 4(3) of the Securities Act and Rule 174 thereunder (for such period of time as shall be required thereby for such persons must comply with such requirements delivery in order to resell the Exchange Securities; provided), however, that (i) in the case where and shall make 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 period ending on 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 brokerParticipating Broker-dealer Dealer for use in connection with any resale of any Exchange Securities Securities, in either case for a period of not less more than 180 90 days after the consummation of the Registered Exchange Offer. If, upon consummation of the Registered Exchange Offer, any Initial Purchaser Lender 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 Lender upon the written request of such Initial PurchaserLender, in exchange (the “"Private Exchange”") for the Initial Securities held by such Initial PurchaserLender, 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 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 or otherwise furnish 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 20 10 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 securities 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Loan Agreement (Sirva Inc)
Registered Exchange Offer. Unless (a) The Issuers shall prepare and, not permitted by applicable law later than 210 days following the Issue Date (or Commission (as defined below) policyif such 210th day is not a Business Day, the Company, at its own costnext succeeding Business Day), shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities Act”), Statement with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6(d) 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 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 are registered under the Securities Act. The Company Issuers shall use its commercially their respective reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and to complete within 270 days of the Registered Exchange Offer within 360 days Issue Date (or if the 360th such 270th day is not a business dayBusiness Day, the first business day thereafternext succeeding Business Day).
(b) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate Affiliate of the Company within the meaning of the Securities Actany Issuer, acquires the Exchange Securities in the ordinary course of such Holder’s business 's business, is not engaged in and does not intend to engage in and has no arrangements or understandings with any person Person to participate in the distribution of the Exchange Securities, is not a broker-dealer tendering Securities directly acquired from any Issuer for its own account 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 state 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, or blue sky laws.
(ic) 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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:
(ai) mail or otherwise furnish 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 20 business 30 days after the date notice thereof is mailed to the Holders (or longer, longer if required by applicable law) after the commencement of the Registered Exchange Offer);
(ciii) if the Issuers receive notice from an Exchanging Dealer that such Exchanging Dealer holds Securities acquired for the account of such Exchanging Dealer as a result of market making or other trading activities, use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, supplemented and amended as required under the Act to ensure that it is available for sales of Exchange 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 in the City of New YorkYork City, which may be the United States Trustee or an affiliate Affiliate of the United States Trustee;
(dv) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York City time, on the last business day Business Day on which the Registered Exchange Offer shall remain openis open by sending to the entity specified in the Prospectus, a facsimile or letter setting forth the name of such Holder, the principal amount of the Securities delivered for exchange and a statement that such Holder is withdrawing such Holder's election to have such Securities exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, if requested, provide a supplemental letter to the Commission (A) stating that the Issuers are 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. Incorporated (pub. avail. June 5, 1991); xxx (X) xxxxxxing a representation that the Issuers have 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 Issuers' 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
(evii) otherwise comply in all material respects with all applicable laws. As soon as practicable laws relating to the Registered Exchange Offer.
(d) Promptly after the close of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company Issuers shall:
(xi) accept for exchange all of the Initial Securities validly duly tendered and not validly withdrawn pursuant to the Registered Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal, which shall be an exhibit thereto;
(yii) deliver to the Trustees Trustee for cancellation in accordance with Section 4(s) hereof all of the Initial Securities so accepted for exchange; and
(ziii) cause the Trustees Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Securities a principal amount of Exchange Securities or Private Exchange Securities, as equal to the case may be, equal in principal amount to of the Initial Securities of such Holder so accepted for exchange. The terms of the Initial .
(e) Each Holder, by tendering Securities provide for exchange for Exchange Securities, 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. Interest on each Exchange Security and Private Exchange Security issued pursuant to any 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 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 Morgan Stanley and Co. Incorporated (pub. Each avail. June 5, 1991) and Exxxx Xxxixxx Xxxdings Corporation (pub. avail. May 13, 1988), as interpreted in Shearman & Sterling (pub. avail. 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 and must be covered by an effective registration statement containing the selling security holder information required by Item 507 and 508 of Regulation S-K, as applicable, under the Act if the resales are of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from any Issuer or one of its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that Issuers that, at the time of the consummation of the Registered Exchange Offer 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 arrangement or understanding with any person Person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, ; and
(iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 Issuer.
(ivf) if such Holder is not a broker-dealer, If any Initial Purchaser determines that it is not engaged ineligible to participate in the Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, and does not intend to engage inat the request of such Initial Purchaser, the distribution of Issuers shall issue and deliver to such Initial Purchaser or the Person purchasing Exchange Securities and (v) if registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Holder is a broker-dealerInitial Purchaser, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as such Securities, a result like principal amount of market-making activities or other trading activities and that it will comply with Exchange Securities. The Issuers shall use their respective reasonable best efforts to cause the prospectus delivery requirements of CUSIP Service Bureau to issue the Securities Act in connection with any resale of same CUSIP number for such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). Notwithstanding any other provisions hereof, the Company will ensure that (i) any for 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. In addition, the Company may file the Exchange Offer Registration Statement issued pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Registered Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActOffer.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 (the “Exchange SecuritiesNotes”) of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities Notes and the provisions relating to the matters described in Section 6 6(d) hereof) that are would be registered under the Securities Act, and which will have the same CUSIP number as the Existing Notes. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. If the Company commences the Registered Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities Notes theretofore validly tendered tendered, and not withdrawn withdrawn, in accordance with the terms of the Registered Exchange Offer. 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(d) hereof) 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 Holder’s business and has no arrangements or understanding 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; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Notes. 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 Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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 Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities Notes acquired in exchange for Initial Securities Notes 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, 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 SecuritiesNotes; 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 period ending on the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities Notes held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus, prospectus and any amendment or supplement thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities Notes 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 Notes acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the 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 Notes 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 Notes (the “Private Exchange SecuritiesNotes”). The Initial SecuritiesNotes, the Exchange Securities Notes and the Private Exchange Securities Notes are herein collectively called the “Securities”. .” In connection with the Registered Exchange Offer, the Company shall:
(a) mail or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;; and
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial SecuritiesNotes, 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 terms of the Initial Securities provide Indenture provides that the Exchange Securities Notes will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities Notes and Existing Notes will vote and consent together on all matters as one classclass and that none of the Notes or Existing Notes 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 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 SecuritiesJuly 15, 2013. 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 its 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 Notes within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Notes. 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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Halcon Resources Corp)
Registered Exchange Offer. Unless not permitted by applicable law or policy of the Securities and Exchange Commission (as defined below) policythe “Commission”), the Company, at its own cost, shall use its commercially reasonable efforts to prepare and and, not later than 180 days (or if the 180th day is not a business day, the first business day thereafter) (such 180th day being a “Filing Deadline”) after the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a an exchange offer registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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, Issuers issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) Date (such 360th day, 270th day or first business day thereafter, herein referred to as the thereafter being an “Consummation Effectiveness Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 HolderXxxxxx’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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 (or such period during which participating persons are required by law to deliver such prospectus) and the period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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:
(xf) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yg) deliver or cause to be delivered to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(zh) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 is not engaged in, and does not intend to engage in, and 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 under of the Securities Act, of the Company, 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 has no arrangements to engage 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 comply with the acknowledges its obligation to deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 amendment or 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 amendment or 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. (a) Unless not permitted by applicable law or Commission (as defined below) policy, the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d6(d) 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 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 6 hereof) that are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Original Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). .
(b) Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. .
(c) 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(d6(d) 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 HolderHxxxxx’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. .
(d) 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 required under the Securities Act 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 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. .
(e) 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 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 period ending on 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(j3(j) below) hereof), 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. .
(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”) 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 6 hereof) 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.”.
(g) In connection with the Registered Exchange Offer, the Company shall:
(ai) mail or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(ciii) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 in all material respects 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yii) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(ziii) cause the Trustees 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. .
(i) The terms of the Initial Securities 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. .
(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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a2(a) hereof). .
(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 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. .
(m) In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘“MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. .
(n) If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) ), within 180 days of the date hereof, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer Act, within 360 270 days (or if the 360th day is not a business day, the first business day thereafter) after of the date of original issue of the Initial Securities (the “Issue Date”) (such 360th dayhereof, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. Unless the Registered Exchange Offer Registration Period”). Promptly would not be permitted by applicable law or policy of the Commission, the Company will commence the Registered Exchange Offer and use all commercially reasonable efforts to issue on or prior to 30 business days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Periodis declared effective by the Commission, the Company shall accept Exchange Securities in exchange for all the Initial Transfer Restricted Securities validly tendered and not withdrawn prior thereto in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 States; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, prospectus and any amendment or supplement thereto, available upon request 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, 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”). 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 or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Callon Petroleum Co)
Registered Exchange Offer. Unless not permitted by applicable law or applicable interpretations of the Staff of the Securities and Exchange Commission (as defined below) policythe "Commission"), the CompanyCompany shall, at its own cost, shall prepare and and, not later than 180 days after (or if the 180th day is not a business day, the first business day thereafter) (such day being the "Exchange Offer Filing Deadline") the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 Mortgage 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 are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) (such day being the "Exchange Offer Effectiveness Deadline") after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s 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 '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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, Company issued under the Indenture Mortgage 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”"). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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, directly or indirectly:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Mortgage will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture Mortgage and that all the Securities will vote and consent together on all matters as one classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after of the date of original issue of hereof, and, if and from the Initial Securities (the “Issue Date”) (such 360th daydate declared effective, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. Unless the Registered Exchange Offer Registration Period”). Promptly would not be permitted by applicable law or policy of the Commission, the Company will commence the Registered Exchange Offer and use its commercially reasonable efforts to issue on or prior to 45 business days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration PeriodStatement is declared effective by the Commission, the Company shall accept Exchange Securities in exchange for all the Initial Transfer Restricted Securities validly tendered and not withdrawn prior thereto in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 Act; provided, however, that the securities laws Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of the several states of the United StatesExchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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 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, 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 PurchaserDealer, such period shall be the lesser of 180 days and the period ending on 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, 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”) 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 Securities”). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the “Securities”; provided, further, that if the Transmittal Letters relating to the Registered Exchange Offer as provided to the Company indicate that no Holder is a broker-dealer, the Company will not be obligated to maintain the effectiveness of such Exchange Offer Registration Statement after the consummation of the Registered Exchange Offer. In connection with the Registered Exchange Offer, the Company shall:
(a) mail or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;; and
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the Company, at its own cost, Company shall prepare and and, not later than 60 calendar days (such 60th 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 United States 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 United States 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(d) 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 and Indenture, substantially identical in all material respects to the Initial Securities (except for that the Exchange Notes will not contain terms with respect to transfer restrictions relating to the Initial Securities restrictions) and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities ActAct (the "EXCHANGE SECURITIES"). The Company shall use its commercially reasonable efforts to (i) cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 calendar days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) Closing Date (such 360th day, or first business 180th day thereafter, herein referred to as the “Consummation Deadline”being an "EFFECTIVENESS DEADLINE") and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 calendar days (or longer, if required by applicable law) after the commencement 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"). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to consummate the Registered Exchange Offer 30 calendar days after such commencement (provided that the Company has accepted all the Initial Securities theretofore validly tendered tendered, and not withdrawn withdrawn, 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 calendar days after the date on which the Exchange Offer Registration Statement is declared effective (such 40th day being the "CONSUMMATION DEADLINE"); provided, however, that if the Company is required by applicable law to keep the Exchange Offer Registration Statement effective for more than 40 days, the Consummation Deadline shall be automatically extended by such number of days exceeding 40 for which the Company is required by applicable law to keep the Exchange Offer Registration Statement effective. 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(d) 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 Holder’s '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; provided, however, that Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities (as defined below). 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 required under set forth in (a) Annex A hereto on the Securities Act 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, 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 commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, Company issued under the Indenture and substantially 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) SECTION 12.01. mail or otherwise furnish 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) SECTION 12.02. keep the Registered Exchange Offer open for not less than 20 business 30 calendar days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) SECTION 12.03. utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) SECTION 12.04. 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) SECTION 12.05. 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the Company, at The Company shall use its own cost, shall best efforts to prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States Securities Act of 1933, as amended (the “"Securities Act”"), with respect to a proposed an offer (the “"Registered Exchange Offer”") to the Holders holders of Transfer Restricted Securities Notes (as defined in Section 6(d) 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 of each tranche, a like aggregate principal amount of debt securities (the “"Exchange Securities”Notes") of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities Notes of that tranche (except for excluding the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereofNotes) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such that Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date on which notice of the Registered Exchange Offer is mailed to the Holders (such that period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof if the Company has accepted all the Initial Securities notes validly tendered and not withdrawn by the 30th day after that commencement in accordance with the terms of the Registered Exchange Offer. 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 (as defined in Section 6(d) hereof) Notes electing to exchange the Initial Securities those Transfer Restricted 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 that Holder’s 's business and has no arrangements arrangement 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 -to trade such those 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. In connection with the Registered Exchange Offer, the Company shall use its best efforts to consummate the Registered Exchange Offer and shall comply with the applicable requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and other applicable laws and regulations in connection with the Registered -Exchange Offer. The Company acknowledges that, pursuant to current interpretations by the Commission’s 's staff of Section section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (ia) 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”"), is required to deliver a prospectus containing the information required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and in Annex C hereto in the "Plan of Distribution" section, in connection with a sale of any such Exchange Securities Notes received by such that Exchanging Dealer pursuant to the Registered Exchange Offer, ; and (iib) an Initial Purchaser that elects if the Purchasers are permitted to and elect to sell Exchange Securities Notes acquired in exchange for Initial Securities Notes constituting any portion of an unsold allotment is allotment, they are 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.the
Appears in 1 contract
Samples: Registration Agreement (Cleveland Electric Illuminating Co)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall after the date of original issue of the Initial Securities (the “Issue Date”) use commercially reasonable best efforts to prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 of each series, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities of the applicable series (except for the removal of transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and shall use its commercially reasonable best efforts to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after such commencement provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s business business, is not a broker-dealer tendering Initial Securities acquired directly from the Company for its own account and 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 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 shall use its commercially reasonable best efforts to consummate the Registered Exchange Offer no later than the 366th day after the Issue Date (such 366th day, the “Consummation Deadline”). 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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 of each series held by such Initial Purchaser, a like principal amount of debt securities of the Company, Company issued under the Indenture of the applicable series 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange SecuritiesSecurities of each series, as the case may be, equal in principal amount to the Initial Securities of the applicable series of such Holder so accepted for exchange. The terms of the Initial Securities provide Indenture provides that the Exchange Securities 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 classclass and that none of the Securities of a 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 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 is not engaged in, and does not intend to engage in, and 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 applicable requirements of 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Continental Maritime of San Diego, Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use its commercially reasonable efforts to, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 (the “Exchange Securities”) of the Company, Company issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 210 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 HolderXxxxxx’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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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 at maturity 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 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 at maturity to the Initial Securities of such Holder so accepted for exchange. The terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the last paragraph if this Section 1), the CompanyCompany shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) the date on which the Merger is consummated (the "Merger Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 days (or if the 360th 180th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Merger Date and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s '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”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, 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”"). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, or Wilmington, Delaware, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the Company, at its own cost, Company shall prepare and and, not later than 90 days (such 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 United States 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 United States 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(d) 6 hereof), who are not 2 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 and Indenture, identical in all material respects to the Initial Securities (except for the transfer restrictions relating to the Initial Securities Securities) and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities ActAct (the "EXCHANGE SECURITIES"). The Company shall use its commercially reasonable efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) Closing Date (such 360th day, or first business 180th day thereafter, herein referred to as the “Consummation Deadline”being an "EFFECTIVENESS DEADLINE") and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement 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"). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (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 and not withdrawn in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchanged 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(d) 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 Holder’s business and 's 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 (other than the prospectus delivery requirements referred to in clause (i) of the next paragraph, if and to the extent applicable) 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 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) the date of original issue (the “Issue Date”) of the Initial Securities (the “Registered Exchange Filing Deadline”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 210 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue Issue Date (the “Registered Exchange Effectiveness Deadline”) of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof; provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer; and provided further that the Company shall use its best efforts to close such Registered Exchange Offer on or prior to 45 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement was declared effective by the Commission (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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (True Temper Sports PRC Holdings Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policylaw, the CompanyCompany shall, at its own cost, shall prepare and and, not later than 120 days (or if the 120th day is not a business day, the first business day thereafter) after the date of delivery of the Offered Securities (the “Delivery Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 Offered Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, Company issued under the Indenture and identical in all material respects to the Initial Offered Securities (except for the removal of transfer restrictions relating to the Initial Offered Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 240 days (or if the 360th 240th day is not a business day, the first business day thereafter) after the date of original issue Delivery Date, an “effectiveness deadline”) of the Initial Offered Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred and shall use its commercially reasonable efforts to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 30 days after such commencement provided that the Company has accepted all the Initial Offered Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) shall use commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement is declared effective (or if the 40th day is not a business day, the first business day thereafter) (such 40th day (or first business day thereafter) 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(d) hereof) electing to exchange the Initial Offered 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 Holder’s business business, is not a broker-dealer tendering Offered Securities acquired directly from the Company for its own account and 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 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 Offered 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial if the Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Offered 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 commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 the Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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 the Purchaser holds Initial Offered 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 the Purchaser upon the written request of such Initial the Purchaser, in exchange (the “Private Exchange”) for the Initial Offered Securities held by such Initial the 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 Offered Securities (the “Private Exchange Securities”). The Initial Offered 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 in all material respects with all applicable lawsrespects. 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Offered Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Offered Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Offered Securities of such Holder so accepted for exchange. The terms of the Initial Securities provide Indenture 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 classclass 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 Offered Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Offered Securities, from the date of original issue of the Initial SecuritiesMay 15, 2011. 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 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 distribution of the Offered Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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, dealer tendering Offered Securities acquired directly from the distribution of the Exchange Securities Company for its own account and (viv) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Offered Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the acknowledges its obligations to deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Harbinger Group Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 60 days after (or if the 60th day is not a business day, the first business day thereafter) the date of original issue of the Notes (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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 Notes (as defined in Section 6(d) 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 (the “"Exchange Securities”Notes") of the Company, Company issued under the Indenture Indentures and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are registered under the Securities ActNotes). The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 Notes (as defined in Section 6(d) 6 hereof) 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 Holder’s 's business and has no arrangements with any person to participate in participaxx xx 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 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 SecuritiesNotes, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities Notes (an “"Exchanging Dealer”"), is required to deliver a prospectus containing the information required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and 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 and (ii) an Initial Purchaser that elects to sell Exchange Securities Notes acquired in exchange for Initial Securities Notes 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, 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 SecuritiesNotes; providedPROVIDED, howeverHOWEVER, that 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 period ending on the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities Notes held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus, prospectus and any amendment or supplement thereto, available to any broker-dealer for use in connection with any resale of any Exchange Securities Notes 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 Notes acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the 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 Notes held by such Initial Purchaser, a like principal amount of debt securities of the Company, Company issued under the Indenture Indentures 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 Notes (the “"Private Exchange Securities”Notes"). The Initial SecuritiesNotes, the Exchange Securities Notes and the Private Exchange Securities Notes are herein collectively called the “"Securities”. ." In connection with the Registered Exchange Offer, the Company shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities Notes 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:
(xi) accept for exchange all of the Initial Securities Notes validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yii) deliver to the Trustees Trustee for cancellation all of the Initial Securities Notes so accepted for exchange; and
(ziii) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial SecuritiesNotes, 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 terms of the Initial Securities Indentures will provide that the Exchange Securities Notes will not be subject to the transfer restrictions set forth in the Indenture Indentures and that all the Securities will vote and consent together on all matters as one classclass 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 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 SecuritiesNotes. 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 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 under of the Securities Act, of the Company, 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 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Notes. 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless The Issuer and the Guarantor shall, at the Guarantor's cost, prepare and, not permitted by applicable law later than 45 days after (or Commission (as defined below) policyif the 45th day is not a business day, the Companyfirst business day thereafter) the date of original issue of the Notes (the "Issue Date"), at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) hereof)the Notes, who are not prohibited by any law or policy of the Commission from participating in the such a Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securitiestheir Notes, a like aggregate principal amount of debt securities of the Issuer (the “"Exchange Securities”") of the Company, issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) Notes), that are would be registered under the Securities Act. The Company Issuer shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer Offers is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly If the Issuer and the Guarantor effect the Registered Exchange Offer, the Issuer will be entitled to close such Registered Exchange Offer 30 days after the Exchange Offer Registration Period, commencement thereof provided that the Company shall accept Issuer has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company Issuer 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 (as defined in Section 6(d) hereof) the Notes electing to exchange the Initial Securities such Notes for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuer or the Guarantor within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s 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 OfferOffers) 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 and the Guarantor 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 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 (an “"Exchanging Dealer”"), is required to deliver a prospectus containing the information required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and 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 a Registered Exchange Offer, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities Notes 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 Issuer and the Guarantor shall use its commercially reasonable their best efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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 and the Guarantor shall make such prospectus, 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 Notes acquired by it as part of its initial distribution, the CompanyIssuer, 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 Notes held by such Initial Purchaser, a like principal amount of debt securities of the Company, Issuer 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 Notes (the “"Private Exchange Securities”"). The Initial SecuritiesNotes, 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 Guarantor shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities Notes 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 Issuer shall:
(x) accept for exchange all of the Initial Securities Notes validly tendered and not withdrawn pursuant to the Registered Exchange Offer and or the Private Exchange, as the case may be (such acceptance constituting the "consummation" of such Registered Exchange Offer notwithstanding the fact that not all of the Notes may have been so tendered);
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities Notes so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Securitieswhich validly tendered Notes, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities Notes of such Holder so accepted for exchange. The terms of the Initial Securities Indenture will provide that the Exchange Securities subject to the Indenture will not be subject to the transfer restrictions set forth in the such Indenture. The Indenture and will also provide that all the Notes, Exchange Securities and Private Exchange Securities subject to such Indenture will vote and consent together on all matters as one classclass and that none of the Notes, Exchange Securities or Private Exchange Securities subject to such Indenture will have the right to vote or consent as a separate class from one another on any matter. Interest on each Exchange Security and or Private Exchange Security issued pursuant to the a Registered Exchange Offer and in the or 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 Securitiessuch Note, from the date of original issue of the Initial Securitiessuch Note. Each Holder participating tendering Notes in the a Registered Exchange Offer shall be required to represent to the Company Issuer that at the time of the consummation of the such 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 Notes or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “"affiliate,” " as defined in Rule 405 under of the Securities Act, of the Company, Issuer or the Guarantor 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 Notes that were acquired as a result of market-making activities or other trading activities and that it will comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, the Company Issuer and the Guarantor will ensure that (i) any the Exchange Offer Registration Statement and any amendment thereto and any prospectus forming a part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations 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 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Winstar Communications Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the CompanyCompany shall, at its own cost, shall prepare and and, not later than 240 days after (or if the 240th day is not a business day, the first business day thereafter) (such 240th day, or the first business day thereafter, being an "Exchange Offer Filing Deadline") after the date of original issue of the Initial Notes (the "ISSUE DATE"), file with the United States 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 United States 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 Notes (as defined in Section 6(d) 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 (the “Exchange Securities”"EXCHANGE NOTES") of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities Notes and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the 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 and to complete the Registered Exchange Offer within 360 300 days (or if the 360th 300th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) Notes (such 360th 300th day, or the first business day thereafter, herein referred to as the “Consummation Deadline”being an "EXCHANGE OFFER EFFECTIVENESS DEADLINE") and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until for not less than If the consummation of Company commences the Registered Exchange Offer. The , the Company shall keep will be entitled to consummate the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the such commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, provided that the Company shall accept has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 Notes (as defined in Section 6(d) 6 hereof) 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 Holder’s 's business and has no arrangements 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 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Leasehold Resource Group LLC)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) ), within 180 days of the date hereof, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer Act, within 360 270 days (or if the 360th day is not a business day, the first business day thereafter) after of the date of original issue of the Initial Securities (the “Issue Date”) (such 360th dayhereof, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. Unless the Registered Exchange Offer Registration Period”). Promptly would not be permitted by applicable law or policy of the Commission, the Company will commence the Registered Exchange Offer and use all commercially reasonable efforts to issue on or prior to 30 business days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Periodis declared effective by the Commission, the Company shall accept Exchange Securities in exchange for all the Initial Transfer Restricted Securities validly tendered and not withdrawn prior thereto in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 States; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an the Initial Purchaser that elects to sell Exchange Securities 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, 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 the Initial Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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 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”) for the Initial Securities held by such the 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 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 or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;; and
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 120 days after (or if the 120th day is not a business day, the first business day thereafter (such 120th day, or first business day thereafter, being a "Filing Deadline")) the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 210 days (or if the 360th 210th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) must 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”) in order to avoid Additional Interest (as defined in Section 6 below) for such a Registration Default (as defined in Section 6 below). 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(d) 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 Holder’s '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”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, 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”"). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Columbus McKinnon Corp)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, as soon as reasonably practicable after the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 240 days (or if the 360th 240th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all of the Initial Securities validly tendered and not withdrawn on or prior to such date in accordance with the terms of the Registered Exchange Offer. 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(d) hereof) electing to exchange the Initial Securities for Exchange Securities (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 Holder’s 's business and (iii) 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 that is a broker-dealer electing to exchange Initial Securities, Securities acquired for its own account as a result of market making activities or other trading activities, activities for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an each Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (PSS World Medical Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined belowa) policy, To the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) hereof), who are extent not prohibited by any applicable law or any applicable interpretation or any applicable policy of the staff of the Commission, (i) the Issuer shall use its reasonable best efforts to prepare and, not later than 360 days following the Closing Date (or if such 360th day is not a Business Day, the next succeeding Business Day), file with the Commission from participating in the Exchange Offer Registration Statement with respect to the Registered Exchange Offer, to issue Offer and deliver to such Holders, in exchange for (ii) the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, issued under the 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 are registered under the Securities Act. The Company Issuer shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and to complete not later than 420 days following the Registered Exchange Offer within 360 days Closing Date (or if the 360th such 420th day is not a business dayBusiness Day, the first business day thereafternext succeeding Business Day).
(b) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 (as defined in Section 6(d) hereof) 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 Holder’s business 's business, is not engaged in and does not intend to engage in and has no arrangements or understandings with any person Person to participate in the distribution of the Exchange Securities Notes, is not a broker-dealer tendering Notes directly acquired from the Issuer for its own account and is not prohibited by any law law, interpretation 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 state 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, or blue sky laws.
(ic) 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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:
(ai) mail or otherwise furnish 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 20 business 30 days after the date notice thereof is mailed to the Holders (or longer, longer if required by applicable law) after the commencement of the Registered Exchange Offer);
(ciii) if the Issuer receives notice from an Exchanging Dealer that such Exchanging Dealer holds Notes acquired for the account of such Exchanging Dealer as a result of market making or other trading activities, use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, 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;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkYork City, which may be the United States Trustee or an affiliate Affiliate of the United States Trustee;
(dv) 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 Business Day on which the Registered Exchange Offer shall remain openis open by sending to the entity specified in the Prospectus, a facsimile or letter setting forth the name of such Holder, the principal amount of the Notes delivered for exchange and a statement that such Xxxxxx is withdrawing such Xxxxxx's election to have such Notes exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, if requested 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 Xxxxxx Xxxxxxx and Co. Incorporated (pub. avail. June 5, 1991); and (B) including a representation that the Issuer has not 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 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; and
(evii) otherwise comply in all material respects with all applicable laws. As soon as practicable laws relating to the Registered Exchange Offer.
(d) Promptly 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 of the Initial Securities Notes validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal, which shall be an exhibit thereto;
(yii) deliver to the Trustees Trustee for cancellation in accordance with Section 4(r) hereof all of the Initial Securities Notes so accepted for exchange; and
(ziii) cause the Trustees 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 terms of the Initial Securities provide ; provided that the Exchange Securities will not be subject to the transfer restrictions set forth in the case of any Notes held in global form by a depository, authentication and delivery to such depository of one or more replacement Notes in global form in an equivalent amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement.
(e) Each Holder, by tendering Notes for exchange for Exchange Notes, acknowledges and agrees that all the Securities will vote any Broker-Dealer and consent together on all matters as one class. Interest on each Exchange Security and Private Exchange Security issued pursuant to any 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 Xxxxxx Xxxxxxx and Co. Incorporated (pub. Each avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as interpreted in Shearman & Sterling (pub. avail. 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 and must be covered by an effective registration statement containing the selling security holder information required by Items 507 and 508 of Regulation S-K, as applicable, under the Act if the resales are of Exchange Notes obtained by such Holder in exchange for Notes acquired by such Holder directly from any 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 in writing (which may be contained in the letter of transmittal contemplated by the Registered Exchange Offer) 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 Person to participate in the distribution of the 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 under the Securities Act, Affiliate of the Company, or if it is an affiliate, such Holder will comply with Issuer.
(f) If the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, Initial Purchaser determines that it is not engaged ineligible to participate in the Registered Exchange Offer with respect to the exchange of Notes constituting any portion of an unsold allotment, and does not intend to engage inat the written request of the Initial Purchaser, the distribution of Issuer shall issue and deliver to the Initial Purchaser or the Person purchasing Exchange Securities and (v) if such Holder is Notes registered under a broker-dealerShelf Registration Statement as contemplated by Section 3 hereof from the Initial Purchaser, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired such Notes, or Exchange Notes, as the case may be, a result of market-making activities or other trading activities and that it will comply with the prospectus delivery requirements like principal amount of the Securities Act in connection with any resale Notes (the "Private Exchange Notes") of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). Notwithstanding any other provisions hereof, the Company will ensure Issuer that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies are identical in all material respects with to the Securities Act and Exchange Notes except for 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 placement of a material fact or omit restrictive legal legend on such Private Exchange Notes. The Issuer shall use its reasonable best efforts to state a material fact required cause the CUSIP Service Bureau to be stated therein or necessary to make issue the statements therein not misleading and (iii) any prospectus forming part of any same CUSIP number for such Private 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. In addition, the Company may file the Notes as for Exchange Offer Registration Statement Notes issued pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Registered Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActOffer.
Appears in 1 contract
Samples: Registration Rights Agreement (Pharma Services Intermediate Holding Corp)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 180 days after (or if the 180th day is not a business day, the first business day thereafter) December 3, 2010 (the “Reference Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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” and together with the Initial Securities, the “Securities”) of the Company, Company issued under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to promptly cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Reference Date and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly If the Company effects the Registered Exchange Offer the Company will be entitled to close the Registered Exchange Offer 30 days after the Exchange Offer Registration Period, commencement thereof provided that the Company shall accept has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly as soon as practicable (but in any event not later than 20 days after such effectiveness) thereafter 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an if the Initial Purchaser that elects to sell Exchange Securities 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 commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 the Initial Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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 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”). 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 otherwise furnish 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 Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver deliver, or cause to be delivered, to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesReference 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless (a) The Company shall prepare and, not permitted by applicable law later than 90 days following the Issue Date (or Commission (as defined below) policyif such 90th day is not a Business Day, the Company, at its own costnext succeeding Business Day), shall prepare and use its reasonable best efforts to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States Securities Act of 1933, as amended (the “Securities Act”), Statement with respect to a proposed offer (the “Registered Exchange Offer”) to the Holders of Transfer Restricted Securities (as defined in Section 6(d) 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 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 are registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and to complete within 180 days of the Registered Exchange Offer within 360 days Issue Date (or if the 360th such 180th day is not a business dayBusiness Day, the first business day thereafternext succeeding Business Day).
(b) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange New Securities (assuming that such Holder is not an affiliate Affiliate of the Company within the meaning of the Securities ActCompany, acquires the Exchange New Securities in the ordinary course of such Holder’s business business, is not engaged in and does not intend to engage in and has no arrangements or understandings with any person Person to participate in the distribution of the Exchange New Securities, is not a broker-dealer tendering Securities acquired directly from the Company for its own account 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 state 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, or blue sky laws.
(ic) 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 required under the Securities Act 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days Business Days after the date notice thereof is mailed to the Holders (or longeror, in each case, longer if required by applicable law) after the commencement of the Registered Exchange Offer);
(ciii) if the Company receives notice from an Exchanging Dealer on the letter of transmittal that such Exchanging Dealer holds Securities acquired for the account of such Exchanging Dealer as a result of market making or other trading activities, use its reasonable 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 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 in the City of New YorkYork City, which may be the United States Trustee or an affiliate of the United States 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 openis open by sending to the entity specified in the Prospectus, a facsimile or letter setting forth the name of such Holder, the principal amount of Securities delivered for exchange and a statement that such Holder is withdrawing such Holder’s election to have such Securities exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company 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 Mxxxxx Sxxxxxx 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 New 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 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 material respects with all applicable laws. laws relating 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 shall:
(xi) accept for exchange all of the Initial Securities validly duly tendered and not validly withdrawn pursuant to the Registered Exchange Offer in accordance with the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal which shall be an exhibit thereto;
(yii) deliver to the Trustees Trustee for cancellation in accordance with Section 4(s) all of the Initial Securities so accepted for exchange; and
(ziii) cause the Trustees 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 terms of the Initial Securities 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. Interest on .
(e) Accordingly, 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 Offer:
(i) any Exchange New Securities 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 Person to participate in the distribution of the Exchange Securities or the New Securities within the meaning of the Securities Act, ; and
(iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, Affiliate of the Company, or if it is an affiliate, such Holder will comply with .
(f) If the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, Initial Purchaser determines that it is not engaged ineligible to participate in the Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, and does not intend to engage inat the request of the Initial Purchaser, the distribution of Company shall issue and deliver to the Exchange Initial Purchaser or the Person purchasing New Securities and (v) if such Holder is registered under a broker-dealerShelf Registration Statement as contemplated by Section 3 hereof from the Initial Purchaser, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as such Securities, a result like principal amount of market-making activities or other trading activities and that it will comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)New Securities. Notwithstanding any other provisions hereofIf required, 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 shall use its reasonable best efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such New 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. In addition, the Company may file the Exchange Offer Registration Statement as for New Securities issued pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Registered Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActOffer.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 Initial Securities of the Initial Securitiesapplicable series, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, Company issued under the Indenture and identical in all material respects to the corresponding 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and Act. The Company shall use its commercially reasonable efforts to complete (i) consummate the Registered Exchange Offer within 360 days (on or if prior to the 360th 540th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities this agreement (the “Issue Date”) and (such 360th day, ii) consummate the Registered Exchange Offer on or first business before the 60th day thereafter, herein referred to as the “Consummation Deadline”) and to cause after the Exchange Offer Registration Statement to remain becomes effective continuously thereafter until under the consummation of Securities Act. If the Company effects the Registered Exchange Offer. The , the Company shall keep will be entitled to close the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, thereof provided that the Company shall accept has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 6 hereof) electing to exchange the Initial Securities of the applicable series for Exchange Securities of the corresponding series (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 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 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 a “Exchanging Participating Broker-Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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 Participating Broker-Dealer pursuant to the Registered Exchange Offer, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, continuously effective under the Securities Act (including by amending and to amend and supplement supplementing the prospectus contained therein, in order to permit ) from and including the date the Exchange Offer Registration Statement becomes effective until the end of such prospectus to be lawfully delivered by all period of time as 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 Participating Broker-Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Participating Broker-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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5:00 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Securities or Private Exchange Securities, as the case may be, of the applicable series, equal in principal amount to the Initial Securities of such Holder so accepted for exchange. The terms of the Initial Securities 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 classclass and that none of the Securities of a 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Baxter International Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policylaw, the CompanyCompany shall, at its own cost, shall prepare and and, not later than 350 days (or if the 350th day is not a business day, the first business day thereafter) after the date of delivery of the Offered Securities (the “Delivery Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 Offered Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, Company issued under the Indenture and identical in all material respects to the Initial Offered Securities (except for the removal of transfer restrictions relating to the Initial Offered Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 410 days (or if the 360th 410th day is not a business day, the first business day thereafter) after the date of original issue Delivery Date, an “effectiveness deadline”) of the Initial Offered Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred and shall use its commercially reasonable efforts to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept (i) will be entitled to close the Registered Exchange Offer 20 business days after such commencement provided that the Company has accepted all the Initial Offered Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) shall use commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days (or longer if required by applicable law) after the date on which the Exchange Offer Registration Statement is declared effective (or if the 40th day is not a business day, the first business day thereafter) (such 40th day (or first business day thereafter) 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(d) hereof) electing to exchange the Initial Offered 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 Holder’s business business, is not a broker-dealer tendering Offered Securities acquired directly from the Company for its own account and 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 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 Offered 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial if a Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Offered 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 sale. The Company shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 a Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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 Offered 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 Offered 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 Offered Securities (the “Private Exchange Securities”). The Initial Offered 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 in all material respects with all applicable lawsrespects. 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Offered Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Offered Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Offered Securities of such Holder so accepted for exchange. The terms of the Initial Securities provide Indenture 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 classclass 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 Offered Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Offered Securities, from the date of original issue of the Initial SecuritiesDelivery 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 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 distribution of the Offered Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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, dealer tendering Offered Securities acquired directly from the distribution of the Exchange Securities Company for its own account and (viv) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Offered Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the acknowledges its obligations to deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Harbinger Group Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined belowa) policy, the CompanyMTGA shall, at its own cost, shall use commercially reasonable efforts to prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 (the “Exchange Securities”Notes;” references herein to the “Exchange Notes” include the Subsidiary Guarantees thereof) of the Company, MTGA issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities Notes and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company MTGA shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 240 days (or if the 360th 240th day is not a business day, the first business day thereafter) after the date of original issue date of the Initial Securities Notes (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company MTGA 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 (as defined in Section 6(d) 6 hereof) electing to exchange the Initial Securities Notes for Exchange Securities Notes (assuming that such Holder is not an affiliate of the Company MTGA within the meaning of the Securities Act, acquires the Exchange Securities Notes in the ordinary course of such Holder’s business and has no arrangements 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 Notwithstanding any provision hereof, MTGA shall not be required to take any of the aforementioned actions under this Section 1(a) if the Registered Exchange Offer shall not be permissible under applicable law or policy of the Commission.
(b) If an Exchange Offer Registration Statement is required to be filed and declared effective pursuant to Section 1(a) above, MTGA shall use commercially reasonable efforts to (i) keep the Exchange Offer Registration Statement effective for not less than 20 business day (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”), (ii) close the Registered Exchange Offer only after accepting all the Initial Notes theretofore validly tendered in accordance with the terms of the Registered Exchange Offer issue and (iii) on or prior to 30 business days after the date on which the Exchange Offer Registration Statement was declared effective by the Commission (such 30th business day, the “Consummation Deadline”), issue the Exchange Notes in respect of all Initial Notes accepted in the Registered Exchange Offer. MTGA 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 Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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 Notes received by such Exchanging Dealer pursuant to the Registered Exchange Offer, and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 MTGA shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 SecuritiesNotes; 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 PurchaserDealer, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities Notes held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company MTGA shall make such prospectus, 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 Notes during such 180-day (or shorter as provided in 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”foregoing provision) 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”)period. The Initial Securities, Notes and the Exchange Securities and the Private Exchange Securities Notes are herein collectively called the “Securities”. .” In connection with the Registered Exchange Offer, the Company shallMTGA shall use commercially reasonable efforts (except with respect to clause (d)) to:
(a) mail or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(dc) 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
(ed) use its reasonable best efforts to 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 ExchangeOffer, as the case may be, the Company MTGA shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities Notes so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder (or to the appropriate depositary, for notes in book-entry form) of the Initial Securities, Notes or Exchange Securities 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 terms of the Initial Securities Indenture will provide that the Exchange Securities Notes 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 together as one single class. 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 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 SecuritiesNotes. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company MTGA 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 does not have and will not have no arrangements 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, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, MTGA 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 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 Notes. Each applicable Holder (i) shall be required to acknowledge and agree that any broker-dealer and any such holder using the Registered Exchange Offer to participate in a distribution of the securities to be acquired in the Registered Exchange Offer could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any a secondary resale of transaction and that such Exchange Securities a secondary resale transaction should be covered by delivering a prospectus included in an effective Registration Statement (registration statement containing the selling security holder information required by Item 507 and 508, as defined applicable, of Regulation S-K if the resales are of Exchange Notes obtained by such Holder in Section 2(a) hereof)exchange for Initial Notes acquired by such Holder directly from MTGA. Notwithstanding any other provisions hereof, the Company MTGA will use its reasonable best efforts to 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. In addition, the Company may file the Exchange Offer Registration Statement provided, that MTGA assumes no responsibility pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be this paragraph for any untrue statement or omission to state a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, material fact insofar as such untrue statement or omission is based upon or derived from information furnished to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission MTGA by any of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActHolders specifically for inclusion therein.
Appears in 1 contract
Samples: Registration Rights Agreement (Mohegan Tribal Gaming Authority)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the Company, at its own cost, Company shall prepare and file with the United States Securities and Exchange Commission (the “‘‘Commission”’’) a registration statement (the “‘‘Exchange Offer Registration Statement”’’) on an appropriate form under the United States 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(d) 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 and Indenture, substantially identical in all material Table of Contents 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 are registered under the Securities ActAct (the ‘‘Exchange Securities’’). The Company shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th such 270th day is not a business day, the first business day thereafterbeing an ‘‘Effectiveness Deadline’’) after the date of original issue of on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Issue ‘‘Closing Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”’’) and to cause will keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “‘‘Exchange Offer Registration Period”’’). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept 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 and not withdrawn in accordance with the terms of the Registered Exchange Offer). 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 (as defined in Section 6(d) 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 Holder’s '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”’’), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, 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 508 508, as applicable, of Regulation S-K under the Securities Act, as applicable, Act in connection with such sale. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 180 120 days and the period ending on 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, 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 180 120 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, Company issued under the Indenture and substantially identical in all material 2 Table of Contents 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”’’). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities provide Indenture 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 3 Table of Contents 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. In additionIf 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 may file will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer Registration Statement pursuant Offer. The Company will pursue the issuance of such a decision to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under Commission staff level. In connection with the Canadian and U.S. shelf offering procedures. Under MJDSforegoing, the Company will take all such other actions as may file a prospectus and a prospectus supplement, if applicable, to be contained requested by the Commission or otherwise reasonably required in such registration statement connection with the applicable securities regulatory authorities issuance of such decision, including without limitation (i) participating in Canada and concurrently file the registration statement telephonic conferences with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery , (ii) delivering to the Commission of staff an analysis prepared by counsel to the notification of clearance 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 applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActCommission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Midamerican Energy Holdings Co /New/)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, on or prior to the 90th day after (or if the 90th day is not a business day, the first business day thereafter) the closing of the offering of Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its all commercially reasonable efforts to cause such have the Exchange Offer Registration Statement to become declared effective by the Commission under the Securities Act and on or prior to complete the Registered Exchange Offer within 360 180 days (or if the 360th 180th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, unless the Registered Exchange Offer would not be permitted by applicable law or Commission policy, 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(d) 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 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 will use all commercially reasonable efforts to issue on or prior to 30 business days, or longer, if required by the federal securities laws (such period being called the “Exchange Offer Registration Period”), after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities in exchange for all Initial Securities tendered prior thereto in the Registered Exchange Offer. If the Company effects the Registered Exchange Offer, the Company will be entitled to close the Registered Exchange Offer 30 days after 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. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 all commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Arden Elizabeth Financing Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the "ISSUE DATE"), file with the United States 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 United States 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(d) 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”"EXCHANGE SECURITIES") of issued by Fairxxxxx xxx guaranteed by the Company, issued Guarantors under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement 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"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof; provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s '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. 3 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 required under set forth in (a) Annex A hereto on the Securities Act 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, 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 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, 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 after the expiration date of the Registered Exchange Offer and the period ending on 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, 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 OfferOffer (or such shorter period during which Participating Broker-Dealers (as defined below) are required by law to deliver such prospectus). 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 the Initial Purchaser upon the written request of such Initial Purchaser, in exchange (each, a "PRIVATE EXCHANGE" and collectively, the “Private Exchange”"PRIVATE EXCHANGES") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of issued by Fairxxxxx xxx guaranteed by the Company, issued Guarantors 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 otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Fairchild Semiconductor International Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed or electronically delivered to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 HolderXxxxxx’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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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”) 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 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 or otherwise furnish electronically deliver 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed or electronically delivered to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, or 5:00 p.m., 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and and, other than as described in Section 9.02 of the Indenture, that all the Securities will vote and consent together on all matters as one classclass 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 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 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Sabine Pass Liquefaction, LLC)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Partnership shall, at its own cost, shall prepare and and, promptly after the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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, Partnership issued under the 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 are would be registered under the Securities Act. The Company Partnership shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly The Partnership shall commence the Registered Exchange Offer promptly after the Exchange Offer Registration PeriodStatement is declared effective by the Commission and use its commercially reasonable efforts to complete the Registered Exchange Offer not later than 180 days after the Issue Date of the Initial Securities. If the Partnership effects the Registered Exchange Offer, the Company shall accept Partnership will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Partnership has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company Partnership 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(d) 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company Partnership within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s '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 Partnership 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”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 Partnership shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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 Partnership shall make such prospectus, 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 CompanyPartnership, 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, Partnership 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”). 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 Partnership shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 Partnership shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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, and in the case of the Exchange Securities, bearing the same CUSIP number as the 5.875% Senior Notes due 2024 issued pursuant to the Fourth Supplemental Indenture (the “Existing 5.875% Notes”). The terms of the Initial Securities 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 and Existing 5.875% Notes will vote and consent together on all matters as one classclass 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 SecuritiesDecember 2, 2013. Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company Partnership 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 under of the Securities Act, of the Company, Partnership 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, the Company Partnership 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Energy Transfer Equity, L.P.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 45 days after (or if the 45th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) hereof)the Initial Securities, 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 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 hereofSecurities) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof, provided, however, that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 the Initial Securities (as defined in Section 6(d) 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 Holder’s '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 market-making activities or other trading activities, for Exchange Securities (an “"Exchanging Dealer”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, 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 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, 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 earlier of 180 days the 180th day after the consummation of the Registered Exchange Offer and the period ending on 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, 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”") 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 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation cancelation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “"affiliate,” " as defined in Rule 405 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter, such date being a "Filing Deadline") the date of original issue of the Initial Securities (the "Issue Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 days (or if the 360th 180th day is not a business day, the first business day thereafter, such day being an "Effectiveness Deadline") after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s '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, subject to any requirement that Exchanging Dealers (as defined below) deliver a prospectus in connection with resales of Exchange Securities. 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”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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. Subject to the next paragraph, for so long as any of the Securities (as defined below) are outstanding (but in no event later than 120 days after the Exchange Offer Registration Statement is declared effective), and if, in the reasonable judgment of the Purchasers or Xxxxxx Xxxxxx & Xxxxxxx llp, the Purchasers or any of their affiliates (as defined in the rules and regulations under the Securities Act) are required to deliver a prospectus (any such prospectus, a "Market Making Prospectus") in connection with sales of the Offered Securities, the Company will (i) provide the Purchasers and their affiliates, without charge, as many copies of the Market Making Prospectus as they may reasonably request, (ii) periodically amend the Market Making Prospectus and the Exchange Offer Registration Statement so that the information contained therein complies with the requirements of section 10(a) of the Securities Act, (iii) amend the Exchange Offer Registration Statement or the Market Making Prospectus when necessary to reflect any material changes in the information provided therein in order that the Exchange Offer Registration Statement or the Market Making Prospectus does not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and promptly file such amendment or supplement with the Commission, (iv) provide the Purchasers and their affiliates with copies of each amendment or supplement so filed and cause its counsel to deliver opinions and cause its independent public accountants to deliver "comfort" letters, in each case as are customary in connection with the filing of a registration statement or prospectus with the Commission, and (v) indemnify such Purchasers and their affiliates with respect to the Market Making Prospectus and, if applicable, contribute to any amount paid or payable by such Purchasers and their affiliates in a manner substantially identical to that specified in Section 7 hereof (with appropriate modifications). The Company and each of the Guarantors consent to the use by such Purchasers and their affiliates, subject to the provisions of this Agreement, the Registration Rights Agreement and applicable provisions of the Securities Act and state securities or Blue Sky laws of the jurisdictions in which the Offered Securities are offered by the Purchasers, of each Market Making Prospectus. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, 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”"). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver take any and all actions necessary to the Trustees for cancellation cancel all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees to authenticate and deliver promptly to each Holder of the Initial Securities, duly issued 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Seabulk Offshore LTD)
Registered Exchange Offer. (a) Unless not permitted by applicable law or Commission (as defined below) policy, the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d6(d) 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 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 6 hereof) that are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). .
(b) Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. .
(c) 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(d6(d) 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 HolderHxxxxx’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. .
(d) 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 required under the Securities Act 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 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. .
(e) 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 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 period ending on 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(j3(j) below) hereof), 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. .
(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”) 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 6 hereof) 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.”.
(g) In connection with the Registered Exchange Offer, the Company shall:
(ai) mail or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(ciii) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 in all material respects 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(yii) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(ziii) cause the Trustees 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. .
(i) The terms of the Initial Securities 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. .
(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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a2(a) hereof). .
(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 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. .
(m) In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘“MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. .
(n) If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 and identical in all material respects to the Initial Securities (except for (i) the issue date, (ii) the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof, and (iii), if applicable, the initial interest payment date and the date from which interest shall first accrue) that are would be registered under the Securities Act. The Company shall use commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete (i) consummate the Registered Exchange Offer within 360 days (on or if prior to the 360th 540 th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities this agreement (the “Issue Date”) and (such 360th day, ii) consummate the Registered Exchange Offer on or first business before the 60th day thereafter, herein referred to as the “Consummation Deadline”) and to cause after the Exchange Offer Registration Statement to remain becomes effective continuously thereafter until under the consummation of Securities Act. If the Company effects the Registered Exchange Offer. The , the Company shall keep will be entitled to close the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, thereof provided that the Company shall accept has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 6 hereof) 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 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 the 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 market- making activities or other trading activities, for Exchange Securities (an a “Exchanging Participating Broker-Dealer”), is required to deliver a prospectus containing the information required under the Securities Act set forth 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 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 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 period ending on 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 (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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, Annex A hereto 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliatecover,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Baxter International Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 60 days after (or if the 60th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the "ISSUE DATE"), file with the United States 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 United States Securities Act of 1933, as amended 1933 (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(d) 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 (the “Exchange Securities”"EXCHANGE SECURITIES") of issued by Fairxxxxx xxx guaranteed by the Company, issued Guarantors under the 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain 2 effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement 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"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s '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 required under set forth in (a) Annex A hereto on the Securities Act 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, 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 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, 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 after the expiration date of the Registered Exchange Offer and the period ending on 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, 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 (each, a "PRIVATE EXCHANGE" and collectively, the “Private Exchange”"PRIVATE EXCHANGES") for the Initial Securities held by such Initial Purchaser, a like principal amount of debt securities of issued by Fairxxxxx xxx guaranteed by the Company, issued Guarantors 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.the
Appears in 1 contract
Samples: Registration Rights Agreement (Fairchild Semiconductor International Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the CompanyCompany shall, at its own cost, shall prepare and and, not later than 90 days after (or if the 90th day is not a business day, the first business day thereafter) the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 180 days (or if the 360th 180th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 40 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 HolderXxxxxx’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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, Company issued under the Indenture Indentures 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”). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indentures will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture Indentures and that all the Securities will vote and consent together on all matters as one classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In additionIf 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 may file will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer unless the Company makes a good faith determination based on the advice of counsel that such a request would be denied in light of publicly available no-action letters, in which case the Company shall proceed to file a Shelf Registration Statement pursuant to the Canadaprovisions of Section 2 hereof. In the event the Company seeks a no-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under action letter or other favorable decision from the Canadian and U.S. shelf offering procedures. Under MJDSCommission pursuant to the preceding sentence, the Company may file will pursue the issuance of such a prospectus and a prospectus supplement, if applicable, decision to be contained in such registration statement the Commission staff level. In connection with the applicable securities regulatory authorities foregoing, the Company will take all such other actions as may be requested by the Commission or otherwise required in Canada and concurrently file connection with the registration statement issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery , (ii) delivering to the Commission of staff an analysis prepared by counsel to the notification of clearance 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 applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActCommission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Delco Remy International Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, The Company and the CompanyGuarantors shall, at its their own cost, shall after the date of original issue of the Initial Securities (the “Issue Date”) use commercially reasonable efforts to prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company and the Guarantors shall use its their commercially reasonable efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and shall use their commercially reasonable efforts to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed or otherwise delivered to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company and the Guarantors commence the Registered Exchange Offer Registration PeriodOffer, the Company shall accept and the Guarantors will be entitled to close the Registered Exchange Offer 20 business days after such commencement provided that the Company and the Guarantors have accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 (as defined in Section 6(d) 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 Holder’s business business, is not a broker-dealer tendering Initial Securities acquired directly from the Company for its own account and 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 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 shall use their commercially reasonable efforts to consummate the Registered Exchange Offer no later than the 366th day after the Issue Date (such 366th day, the “Consummation Deadline”). The Company 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 and the Guarantors shall use its their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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 CompanyCompany and the Guarantors, 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, but excluding provisions relating to the matters described in Section 6 hereof) 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 or otherwise furnish deliver 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed or otherwise delivered to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 and the Guarantors shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities provide Indenture provides that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all of the Securities will vote and consent together on all matters as one classclass 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 is not engaged in, and does not intend to engage in, and has no arrangements or understanding with any person to participate in the distribution of the Initial Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, 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, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 applicable requirements of 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Huntington Ingalls Industries, Inc.)
Registered Exchange Offer. Unless The Company shall, at its cost, prepare and, not permitted by applicable law later than 45 days after (or Commission if the 45th day is not a business day, the first business day thereafter) the Issue Date (as defined belowin the Indenture) policyof the Notes, the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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 Notes (as defined in Section 6(d) 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 Securitiessuch Transfer Restricted Notes, a like aggregate principal amount of debt securities (the “"Exchange Securities”Notes") of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereofNotes) that are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, longer if required by applicable law) after the commencement date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof; provided, however, that the Company has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) hereof) Notes electing to exchange the Initial Securities such 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 Holder’s business and 's business, has no arrangements 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. In connection with such Registered Exchange Offer, the Company shall take such further action, including, without limitation, appropriate filings under state securities laws, as may be necessary to realize the foregoing objective subject to Section 3(h) below. 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 SecuritiesNotes, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities Notes (an “"Exchanging Dealer”"), is required to deliver a prospectus containing the information required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and 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 and (ii) an if the Initial Purchaser that elects to sell Exchange Securities Notes acquired in exchange for Initial Securities Notes constituting any portion of an unsold allotment allotment, such Initial Purchaser 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 efforts to keep the Exchange Offer Registration Statement effective, effective and to amend and supplement the prospectus contained therein, 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 SecuritiesNotes; 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 the Initial Purchaser, such period shall be the lesser of 180 days after the expiration date of the Registered Exchange Offer and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers Purchaser have sold all Exchange Securities Notes held by them (unless such period is extended pursuant to Section 3(j) below) ), and (ii) the Company shall make such prospectus, prospectus and any amendment or supplement thereto, thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities Notes for a period of not less than 180 90 days after the consummation of the Registered Exchange Offer; provided further, however, that upon the occurrence of any event described in Section 6(a)(iii), such 180 days or 90 days, as applicable, shall be extended by the number of days during which such event continues. If, upon consummation of the Registered Exchange Offer, any the Initial Purchaser holds Initial Securities Notes acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the Exchange Securities Notes 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”") for the Initial Securities Notes held by such the 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 Notes (the “"Private Exchange Securities”Notes"). The Initial SecuritiesNotes, the Exchange Securities Notes and the Private Exchange Securities Notes are herein collectively called the “"Securities”". In connection with the Registered Exchange Offer, the Company shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary ("Depository Trust Company") for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities Notes 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 lawslaw. 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 of the Initial Securities Notes validly tendered and not withdrawn pursuant to the Registered Exchange Offer and or the Private Exchange, as the case may be;
(yii) deliver to the Trustees Trustee for cancellation cancelation all of the Initial Securities Notes so accepted for exchange; and
(ziii) cause the Trustees Trustee to authenticate and promptly deliver promptly to each Holder of the Initial Securities, Exchange Securities Notes or Private Exchange SecuritiesNotes, as the case may be, equal in principal amount to the Initial Securities Notes of such each Holder so accepted for exchange. The terms of the Initial Securities Indenture will provide that the Exchange Securities Notes 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. Interest on each Exchange Security class 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 that none of the Initial SecuritiesSecurities will have the right to vote or consent as a class separate from one another on any matter. 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 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 under of the Securities Act, of the CompanyCompany 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 Notes 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 comply with the deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Notes. Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming a part thereof and any supplement thereto complies will comply 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 will 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Bremen Bearings Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 6(d) hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. If the Company commences the Registered Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof; provided that the Company has accepted all the Initial Securities theretofore validly tendered tendered, and not withdrawn withdrawn, in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 States; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, 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”). 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 or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;; and
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Halcon Resources Corp)
Registered Exchange Offer. Unless not permitted by applicable law or Commission The Company shall (as defined belowa) policy, within 210 days after the Companydate of original issue of the Initial Securities (the “Issue Date”), at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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 Initial Securities (as defined in Section 6(d) 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 HoldersHolders as soon as practicable after the effectiveness of the Exchange Offer Registration Statement, in exchange for the Initial Securities, a like aggregate principal amount of debt securities (the “Exchange Securities”) of the Company, Issuer issued under the 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 are would be registered under the Securities Act. The Company shall ; (b) use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain be declared effective continuously thereafter until under the consummation of Securities Act within 330 days after the Registered Exchange Offer. The Company shall Issue Date; and (c) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders of the Initial Securities (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled (subject to applicable law) to close the Registered Exchange Offer 20 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) hereof6 below) 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 Holder’s business and has no arrangements or understandings 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. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act cover, (b) Annex B hereto in the “Exchange Offer Procedures” (or other appropriate) section of such prospectus and the “Purpose of the Exchange Offer” (or other appropriate) section of such prospectus 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, effective and to amend and supplement the prospectus contained therein, 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 180 days following the effective date of the Exchange Offer Registration Statement or such shorter 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 period ending on 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, prospectus and any amendment or supplement thereto, thereto available to any requesting 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, Issuer 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”). 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 or otherwise furnish deliver to each Holder of Initial 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offerdate notice thereof is mailed or delivered to such Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 soon as reasonably 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 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 under of the Securities Act, of the Company, 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, a distribution (within the distribution meaning of the Securities Act) 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Diamond Resorts Parent, LLC)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) ), within 180 days of the date hereof, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) hereof), who ) that 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th day is not a business day, the first business day thereafter) after of the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) hereof and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. Unless the Registered Exchange Offer Registration Period”). Promptly would not be permitted by applicable law or policy of the Commission, the Company will commence the Registered Exchange Offer and use all commercially reasonable efforts to issue on or prior to 30 business days (or longer, if required by applicable securities laws) after the date on which the Exchange Offer Registration PeriodStatement is declared effective by the Commission, the Company shall accept Exchange Securities in exchange for all the Initial Transfer Restricted Securities validly tendered and not withdrawn prior thereto in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 States; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, effective and to amend and supplement the prospectus contained therein, 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 period ending on 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, prospectus and any amendment or supplement thereto, available upon request 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, 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”). 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 or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, ) of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Callon Petroleum Co)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Issuer shall, at its own cost, shall prepare and and, 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") (such 180th day or next succeeding business day being a "Filing Target Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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, Issuer issued under the Indenture and identical in all material respects to the applicable series of Initial Securities held by such Holders (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities ActAct (collectively, the "Exchange Securities"). The Company Issuer shall use its all commercially reasonable efforts to to
(i) cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 240 days (or if the 360th 240th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, 240th day or first next succeeding business day thereafter, herein referred to as the “Consummation Deadline”being an "Effectiveness Target Date") and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly If the Issuer effects the Registered Exchange Offer, the Issuer (i) will be entitled to close the Registered Exchange Offer 20 business days after the Exchange Offer Registration Period, commencement thereof; provided that the Company shall accept Issuer has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) will use all commercially reasonable efforts to consummate the Registered Exchange Offer no later than 30 business days (or longer if required by applicable law) after the Effectiveness Target Date (such business day being the "Consummation Deadline"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company Issuer 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 (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuer within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no understandings or 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 Act, and to the extent required in accordance with Section 3(f), without material restrictions under the securities laws of the several states of the United States. The Company Issuer 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”"), is required to deliver a prospectus containing substantially the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 Issuer shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on the date on which all Exchanging Dealers and the Initial Purchasers give written notice to the Issuer that they have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j3(h) below) and (ii) the Company Issuer shall make such prospectus, 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 CompanyIssuer, 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, Issuer 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 applicable series of Initial Securities held by such Initial Purchaser (the “"Private Exchange Securities”"). The Private Exchange Securities will be issued as evidence of the same continuing indebtedness of the Issuer and will not constitute the creation of new indebtedness. 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 otherwise furnish to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal ("Letter of Transmittal") and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company Issuer shall:
(x) accept for exchange all of the Initial Securities validly tendered and not properly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange in accordance with the terms of the Exchange Offer Registration Statement and the Letter of Transmittal;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, the applicable series of Exchange Securities or Private Exchange Securities, as the case may be, equal in aggregate principal amount to the applicable series of Initial Securities of such Holder so accepted for exchange. The terms of the Initial Securities 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 classclass 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 Exchange Security and Private Exchange Security will bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by Initial Securities from time to time during such period. 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 or resale of the Securities or Exchange Securities in violation of the Securities Act, (iii) such Holder is not an “"affiliate,” " as defined in Rule 405 under of the Securities Act, of the Company, Issuer 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 has no understanding or arrangement with any person to participate 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, the Company Issuer will use its best efforts to 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Edison Mission Energy)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Issuer shall, at its own cost, shall prepare and and, 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") (such 180th day or next succeeding business day being a "Filing Target Date"), file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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, Issuer issued under the Indenture and identical in all material respects to the applicable series of Initial Securities held by such Holders (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities ActAct (collectively, the "Exchange Securities"). The Company Issuer shall use its all commercially reasonable efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 240 days (or if the 360th 240th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, 240th day or first next succeeding business day thereafter, herein referred to as the “Consummation Deadline”being an "Effectiveness Target Date") and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly If the Issuer effects the Registered Exchange Offer, the Issuer (i) will be entitled to close the Registered Exchange Offer 20 business days after the Exchange Offer Registration Period, commencement thereof; provided that the Company shall accept Issuer has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer and (ii) will use all commercially reasonable efforts to consummate the Registered Exchange Offer no later than 30 business days (or longer if required by applicable law) after the Effectiveness Target Date (such business day being the "Consummation Deadline"). Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company Issuer 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 (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuer within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s 's business and has no understandings or 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 Act, and to the extent required in accordance with Section 3(f), without material restrictions under the securities laws of the several states of the United States. The Company Issuer 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”"), is required to deliver a prospectus containing substantially the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 Issuer shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on the date on which all Exchanging Dealers and the Initial Purchasers give written notice to the Issuer that they have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j3(h) below) and (ii) the Company Issuer shall make such prospectus, 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 CompanyIssuer, 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, Issuer 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 applicable series of Initial Securities held by such Initial Purchaser (the “"Private Exchange Securities”"). The Private Exchange Securities will be issued as evidence of the same continuing indebtedness of the Issuer and will not constitute the creation of new indebtedness. 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 otherwise furnish to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal ("Letter of Transmittal") and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company Issuer shall:
(x) accept for exchange all of the Initial Securities validly tendered and not properly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeExchange in accordance with the terms of the Exchange Offer Registration Statement and the Letter of Transmittal;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees Trustee to authenticate and deliver promptly to each Holder of the Initial Securities, the applicable series of Exchange Securities or Private Exchange Securities, as the case may be, equal in aggregate principal amount to the applicable series of Initial Securities of such Holder so accepted for exchange. The terms of the Initial Securities 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 classclass 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 Exchange Security and Private Exchange Security will bear interest at the rate set forth thereon; provided, that interest with respect to the period prior to the issuance thereof shall accrue at the rate or rates borne by Initial Securities from time to time during such period. 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 or resale of the Securities or Exchange Securities in violation of the Securities Act, (iii) such Holder is not an “"affiliate,” " as defined in Rule 405 under of the Securities Act, of the Company, Issuer 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 has no understanding or arrangement with any person to participate 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, the Company Issuer will use its best efforts to 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Edison Mission Energy)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “"Issue Date”") (such 360th day, or first business day thereafter, herein referred as described below and shall use commercially reasonable efforts to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 business days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s '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”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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 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 efforts to keep the Exchange Offer Registration Statement effective, 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 PurchaserDealer, such period shall be the lesser of 180 days and the period ending on 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, 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 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 in all material respects with all applicable laws. As soon as practicable after the close expiration of the Registered Exchange Offer or the Private Exchange, as the case may beOffer, the Company shall:
(x) accept for exchange all of the Initial Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 (including the payment of any PIK Interest (as defined in the Indenture)) 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 under of the Securities ActAct (an “Affiliate”), of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Education Management Corporation)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and and, not later than 180 days after (or if the 180th day is not a business day, the first business day thereafter) (such 180th day, or the first business day thereafter, being an “Exchange Offer Filing Deadline”) the date of original issue of the Initial Securities (the “Issue Date”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th 270th day, or the first business day thereafter, herein referred to as the being an “Consummation Exchange Offer Effectiveness Deadline”) after the Issue Date of the Initial Securities and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to consummate the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, 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”). 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 or otherwise furnish to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with with, if required by the Trustee for the Securities or the depositary for the Securities, an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 lawslaws relating to 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:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, but subject to Section 3(b) with respect to suspension, 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and use commercially reasonable efforts to file with the United States U.S. Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States U.S. 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business dayBusiness Day, the first business day Business Day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days Business Days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (is mailed or electronically delivered to the Holders. As used in this Agreement, “Business Day” has the meaning given to such period being called the “Exchange Offer Registration Period”). Promptly after term in Rule 14d-1(g)(3) under the Exchange Offer Registration PeriodAct. If the Company effects the Registered Exchange Offer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 Business Days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 HolderXxxxxx’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 shall use commercially reasonable efforts to complete the Registered Exchange Offer on or before the 60th day after the Exchange Offer Registration Statement becomes effective under the Securities Act. 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 market-making activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial a Purchaser that elects to sell Exchange Securities 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 shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 a Purchaser, such period shall be the lesser of 180 days and the period ending on 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, 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”) 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 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Cheniere Energy Partners, L.P.)
Registered Exchange Offer. Unless The Issuer shall, at the Issuer's cost, prepare and, not permitted by applicable law later than 45 days after (or Commission (as defined below) policyif the 45th day is not a business day, the Companyfirst business day thereafter) the date of original issue of the Notes (the "Issue Date"), at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) hereof)the Notes, who are not prohibited by any law or policy of the Commission from participating in the such a Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securitiestheir Notes, a like aggregate principal amount of debt securities of the Issuer (the “"Exchange Securities”") of the Company, issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) Notes), that are would be registered under the Securities Act. The Company Issuer shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer Offers is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly If the Issuer effects the Registered Exchange Offer, the Issuer will be entitled to close such Registered Exchange Offer 30 days after the Exchange Offer Registration Period, commencement thereof provided that the Company shall accept Issuer has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of 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 (as defined in Section 6(d) hereof) the Notes electing to exchange the Initial Securities such Notes for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuer within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder’s '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 OfferOffers) 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 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 SecuritiesNotes, 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 required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and 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 a Registered Exchange Offer, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities acquired in exchange for Initial Securities Notes 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 Issuer shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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 shall make such prospectus, 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 Notes acquired by it as part of its initial distribution, the CompanyIssuer, 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 Notes 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”). 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 or otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof). 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.Initial
Appears in 1 contract
Samples: Registration Rights Agreement (Winstar Communications Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, The Company and the CompanyGuarantors shall, at its their own cost, shall prepare and use commercially reasonable efforts to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company and the Guarantors shall use its all commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 225 days (or if the 360th 225th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 30 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company and the Guarantors effect the Registered Exchange Offer Registration PeriodOffer, the Company shall accept and the Guarantors will close the Registered Exchange Offer and issue the Exchange Securities for all of the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange OfferOffer on or prior to 30 business days after the commencement thereof (or longer, if required by applicable law). 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 (as defined in Section 6(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an the Initial Purchaser that elects to sell Exchange Securities 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 commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 the Initial Purchaser, such period shall be the lesser of 180 days and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers have Purchaser has 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, 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 CompanyCompany and the Guarantors, 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”) for the Initial Securities held by such the 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 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 and the Guarantors shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all of the Securities will vote and consent together on all matters as one classclass 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 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, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its all commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th 270th day is not a business day, the first business day thereafter) after the date of original issue issuance of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as of the “Consummation Deadline”) Initial Securities and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 all commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 30 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Cheniere Energy Inc)
Registered Exchange Offer. Unless not To the extent permitted by applicable law or Commission (as defined below) policy, interpretations of the Company, at its own cost, shall prepare and file with staff of the United States Securities and Exchange Commission (the “Commission”) a ), the Company shall, at its own cost, use its commercially reasonable efforts to prepare and file with the Commission one or more registration statement statements (collectively, the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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, Issuer issued under the Indenture and identical in all material respects to the Initial Securities surrendered by such Holder (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and shall use its commercially reasonable efforts to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 21 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall as promptly as practicable commence the Registered Exchange OfferOffer for the Initial Securities, it being the objective of such Registered Exchange Offer to enable each Holder of Transfer Restricted Securities (as defined in Section 6(d) 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 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 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 or dealer registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (a “broker-dealer 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 information substantially similar to that set forth in (a) Annex A hereto on the information required under cover, (b) Annex B hereto in the Securities Act “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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, subject to Sections 3(b) and 3(j) hereof, 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 90 days and the period ending on 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, prospectus and any amendment or supplement thereto, thereto available to any broker-dealer, as reasonably requested by such broker-dealer in writing 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 CompanyIssuer, 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, Issuer 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”). 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 otherwise furnish to each Holder a copy of the prospectus forming part of the applicable Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents, as appropriate;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States Trustee;
(dc) 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
(ed) 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 shallIssuer shall use its commercially reasonable efforts to:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the such Registered Exchange Offer and the such Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 issued pursuant to the Indenture will vote and consent together on all matters as one classclass and that none of such 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 each 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Securities. Notwithstanding any other provisions hereof, the Company will use commercially reasonable efforts to ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies complies, at the time of filing, 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, as of their respective dates, 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Freescale Semiconductor Holdings I, Ltd.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) ), within 360 days of the date hereof, a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become be declared effective under the Securities Act and to complete the Registered Exchange Offer Act, within 360 425 days (or if the 360th day is not a business day, the first business day thereafter) after of the date of original issue of the Initial Securities (the “Issue Date”) (such 360th dayhereof, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer (such period being called is mailed to the “Holders. Unless the Registered Exchange Offer Registration Period”). Promptly would not be permitted by applicable law or policy of the Commission, the Company will commence the Registered Exchange Offer and use all commercially reasonable efforts to issue on or prior to 30 business days, or longer, if required by applicable securities laws, after the date on which the Exchange Offer Registration Periodis declared effective by the Commission, the Company shall accept Exchange Securities in exchange for all the Initial Transfer Restricted Securities validly tendered and not withdrawn prior thereto in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 States; provided, however, that the Exchanging Dealers (as defined below) will be required to deliver a prospectus in connection with resales of Exchange Securities. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, prospectus and any amendment or supplement thereto, available upon request 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, 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”). 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 or otherwise furnish deliver to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter Letter of transmittal Transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the City of New YorkOffer, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 SecuritiesSecurities (the “Issue 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 its 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 comply 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 do not, when it becomes they become 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 do 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Callon Petroleum Co)
Registered Exchange Offer. (a) Unless the Exchange Offer shall not permitted by be permissible under applicable law or Commission (as defined below) policy, each of the Company, at its own cost, Issuers and the Guarantors shall prepare and file (i) cause to be filed with the United States Commission on or prior to 90 days after the Closing Date (or if such 90th day is not a Business Day, the next succeeding Business Day), a Registration Statement under the Securities Act relating to the Exchange Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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”ii) of the Company, issued under the 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 are registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under on or prior to 210 days after the Closing Date (or if such 210th day is not a Business Day, the next succeeding Business Day), (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) file, if applicable, a post-effective amendment to such Registration Statement pursuant to the Securities Act and (C) use its commercially reasonable efforts to complete cause all necessary filings in connection with the Registered registration and qualification of the Exchange Securities to be made under the state securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer within 360 days and (or if iv) upon the 360th day is not a business dayeffectiveness of such Registration Statement, promptly commence the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer. The Exchange Offer Registration Statement to remain effective continuously thereafter until shall be on the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 Holder’s business and has no arrangements with any person to participate in the distribution appropriate form permitting registration 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 required under the Securities Act 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 acquired be offered in exchange for Initial the Transfer Restricted Securities constituting any portion and to permit resales of an unsold allotment is required to deliver a prospectus containing Securities held by Participating Broker-Dealers as contemplated by Section 3(c) hereof.
(b) Each of the information required by Items 507 or 508 of Regulation S-K under Issuers and the Securities Act, as applicable, in connection with such sale. The Company Guarantors 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 lawfully delivered by all persons continuously effective (subject to the prospectus delivery requirements suspension rights set forth in the last paragraph of the Securities Act for such period of time as such persons must comply with such requirements in order to resell Section 6) and shall keep 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 period ending on 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 Offer open for a period of not less than 180 the minimum period required under applicable Federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days after the date notice of the Exchange Offer is mailed to the Holders. The Issuers shall cause the Exchange Offer to comply with all applicable Federal and state securities laws. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement. The Issuers shall use their commercially reasonable efforts to cause the Exchange Offer to be Consummated no later than 240 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 distributionClosing Date (or if such 240th day is not a Business Day, 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 next succeeding Business Day) (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, but excluding provisions relating to the matters described in Section 6 hereof) to the Initial Securities (the “Private Exchange SecuritiesConsummation Deadline”). 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:.
(ac) mail or otherwise furnish to each Holder The Issuers shall include a copy statement in a “Plan of Distribution” section contained in the prospectus Prospectus forming a part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep Statement describing the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address manner in the Borough of Manhattan in the City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered any Broker-Dealer who holds 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 of the Initial that are Transfer Restricted Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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. 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 were 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 Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under 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 (other than Transfer Restricted Securities acquired directly from the Issuers) (“Participating Broker-Dealer”), may resell Exchange Securities received by such Participating Broker-Dealer in the Exchange Offer; however, such Participating Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and that it will comply with must, therefore, deliver a prospectus meeting the prospectus delivery requirements of the Securities Act in connection with any resale such resales, which prospectus delivery requirement may be satisfied by the delivery by such Participating Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also contain all other information with respect to such Exchange resales by Participating Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Participating Broker-Dealer or disclose the amount of Securities held by delivering any such Participating Broker-Dealer except to the extent required by the Commission as a prospectus included result of a change in an effective Registration Statement (as defined in Section 2(a) hereof)policy after the date of this Agreement. Notwithstanding any other provisions hereof, Each of the Company will ensure that (i) any Issuers and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and any amendment thereto amended as required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of Securities acquired by Participating Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and any prospectus forming part thereof and any supplement thereto complies in all material respects to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, 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 Commission as announced from time to time, for a period ending on the earliest of (i) 180 days from the date on which they were made, not misleading. In addition, the Company may file the Exchange Offer Registration Statement pursuant is declared effective, (ii) the date on which a Participating Broker-Dealer is no longer required to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file deliver a prospectus in connection with market-making or other trading activities and a prospectus supplement(iii) when all Transfer Restricted Securities covered by such Registration Statement have been sold, if applicable, cease to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commissionoutstanding or otherwise cease to be Transfer Restricted Securities. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission The Issuers shall provide sufficient copies of the notification latest version of clearance by such Prospectus to Participating Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the applicable Canadian securities regulatory authorities and may not be subject foregoing sentence) period in order to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in facilitate such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Actresales.
Appears in 1 contract
Samples: Registration Rights Agreement (CareTrust REIT, Inc.)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, the CompanyThe Company shall, at its own cost, shall for the benefit of the Holders, use its reasonable best efforts to prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company shall use its commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days Business Days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 20 Business Days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) 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 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 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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, 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 period ending on 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, 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, 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”). 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 or otherwise furnish 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 20 business days Business Days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (APT Sunshine State LLC)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the Company, at its own cost, Company shall prepare and file with the United States 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 United States 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(d) 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 and Indenture, substantially 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 are registered under the Securities ActAct (the "EXCHANGE SECURITIES"). The Company shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 270 days (or if the 360th such 270th day is not a business day, the first business day thereafterbeing an "EFFECTIVENESS DEADLINE") after the date of original issue of on which the Initial Purchasers purchase the Initial Securities pursuant to the Purchase Agreement (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”"CLOSING DATE") and to cause will keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement 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"). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company shall accept 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 and not withdrawn in accordance with the terms of the Registered Exchange Offer). 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 (as defined in Section 6(d) 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 Holder’s '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 required under set forth in (a) Annex A hereto on the Securities Act 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, 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 508 508, as applicable, of Regulation S-K under the Securities Act, as applicable, Act in connection with such sale. The Company shall use its commercially reasonable best efforts to keep the Exchange Offer Registration Statement effective, 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 180 120 days and the period ending on 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, 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 180 120 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, Company issued under the Indenture and substantially 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 "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 otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In additionIf 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 may file will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer Registration Statement pursuant Offer. The Company will pursue the issuance of such a decision to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under Commission staff level. In connection with the Canadian and U.S. shelf offering procedures. Under MJDSforegoing, the Company will take all such other actions as may file a prospectus and a prospectus supplement, if applicable, to be contained requested by the Commission or otherwise reasonably required in such registration statement connection with the applicable securities regulatory authorities issuance of such decision, including without limitation (i) participating in Canada and concurrently file the registration statement telephonic conferences with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery , (ii) delivering to the Commission of staff an analysis prepared by counsel to the notification of clearance 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 applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActCommission staff.
Appears in 1 contract
Samples: Registration Rights Agreement (Midamerican Energy Holdings Co /New/)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined belowa) policy, To the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) hereof), who are extent not prohibited by any applicable law or policy applicable interpretation of the Commission, the Company shall prepare and, not later than 90 days following the date of the original issuance of the Securities (or if such 90th day is not a Business Day, the next succeeding Business Day) shall file with the Commission from participating in the Exchange Offer Registration Statement with respect to 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 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 are registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective under the Act within 180 days of the date of the original issuance of the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th such 180th day is not a business dayBusiness Day, the first business day thereafternext succeeding Business Day).
(b) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement of the Registered Exchange Offer (such period being called the “Exchange Offer Registration Period”). Promptly after the Exchange Offer Registration Period, the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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 electing to exchange Transfer Restricted Securities (as defined in Section 6(d) hereof) electing to exchange the Initial Securities for Exchange New Securities (assuming that such Holder is not an affiliate Affiliate of the Company, is not a Broker-Dealer that purchases New Securities from the Company within to resell pursuant to Rule 144A promulgated under the meaning of the Securities ActAct or any other available exemption, acquires the Exchange New Securities in the ordinary course of such Holder’s business and 's business, has no arrangements or understanding with any person Person to participate in the distribution of the Exchange New Securities and is not participating in, and does not intend to participate in the distribution of such 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 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 required under the Securities Act 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 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 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 period ending on 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 (including the existence of restrictions on transfer under the Securities Act and the securities laws substantial proportion of the several states of the United States, but excluding provisions relating to the matters described in Section 6 hereof.
(c) 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 or otherwise furnish 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 20 business days Business Days after the date notice thereof is mailed to the Holders (or longer, longer if required by applicable law) after the commencement of the Registered Exchange Offer);
(ciii) use its reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective under the 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 in the City of New YorkYork City, which may be the United States Trustee or an affiliate of the United States Trusteeits Affiliates;
(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 Company is 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 Company has 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 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 material 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 shall:
(xi) accept for exchange all of the Initial Transfer Restricted Securities validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the Private Exchangeletter of transmittal which is an exhibit thereto;
(yii) deliver deliver, or cause to be delivered, to the Trustees Trustee for cancellation in accordance with Section 4(s) all of the Initial Transfer Restricted Securities so accepted for exchange; and
(ziii) cause the Trustees Trustee promptly to authenticate and deliver promptly to each Holder of the Initial Securities, Exchange Transfer Restricted Securities or Private Exchange Securities, as the case may be, equal in an aggregate principal amount of New Securities equal to the Initial aggregate principal amount of the Transfer Restricted Securities of such Holder so accepted for exchange. The terms of the Initial Securities 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. Interest on each Exchange Security and Private Exchange Security issued pursuant to any 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 Xxxxxx Xxxxxxx and Co.. Inc. (pub. Each 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 Act in connection with any secondary resale transaction and that such a secondary resale transaction 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 New 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 that, at the time of the consummation of the Registered Exchange Offer Offer:
(i) any Exchange New Securities received by such Holder will be is acquired in the ordinary course of business, ;
(ii) such Holder will have has no arrangements arrangement or understanding with any person Person to participate in the distribution of the Exchange New Securities and is not participating in, and does not intend to participate in the distribution of such New Securities within the meaning of the Securities Act, ; and
(iii) such Holder is not an “affiliate,” as defined in Rule 405 under the Securities Act, Affiliate of the Company. In addition, or if it is an affiliate, any such Holder will comply with the registration and prospectus delivery requirements shall be required to make such other representations as may be reasonably necessary under applicable rules, regulations or interpretations of the Securities Commission to render the use of Form S-4 or other applicable form under the Act to the extent applicable, available.
(ivf) if such Holder is not a broker-dealer, If any Initial Purchaser determines that it is not engaged ineligible to participate in the Registered Exchange Offer with respect to the exchange of Transfer Restricted Securities constituting any portion of an unsold allotment, and does not intend to engage inat the request of such Initial Purchaser, the distribution of Company shall issue and deliver to such Initial Purchaser or the Exchange Person purchasing New Securities and (v) if registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Holder is a broker-dealerInitial Purchaser, that it will receive Exchange Securities for its own account in exchange for Initial such Securities, a like aggregate principal amount of New Securities (except that were acquired as a result of market-making activities or other trading activities and that it such New Securities will comply with contain the prospectus delivery requirements of transfer restrictions contained in the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereofSecurities). Notwithstanding any other provisions hereof, The Company shall use its reasonable best efforts to cause 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 CUSIP Service Bureau to issue the same CUSIP number for such New 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. In addition, the Company may file the Exchange Offer Registration Statement as for New Securities issued pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Registered Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActOffer.
Appears in 1 contract
Samples: Registration Rights Agreement (Metromedia Fiber Network Inc)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policylaw, the Company, at its own cost, Issuers shall prepare and use their commercially reasonable efforts to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 Company under the Indenture and Indenture, substantially 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 are and registered under the Securities Act. The Company Issuers shall use its their commercially reasonable efforts (i) to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 days (or if the 360th day is not a business day, the first business day thereafterii) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) and to cause keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Issuers commence the Registered Exchange Offer, the Issuers (i) will be entitled to consummate the Registered Exchange Offer Registration Period, 20 business days after such commencement (provided that the Company shall accept Issuers have accepted all the Initial Securities theretofore validly tendered and not withdrawn 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 Issuers 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 (as defined in Section 6(d) 6 hereof) electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company Issuers within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such HolderXxxxxx’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 Issuers 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 required under set forth in (a) Annex A hereto on the Securities Act 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, 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 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 Issuers shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, effective and to shall 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 period ending on 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 Issuers shall make such prospectus, 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 OfferOffer (or such shorter period during which such persons are required by applicable law to deliver such prospectus). If, upon consummation of the Registered Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it as part of its initial distribution, the CompanyIssuers, 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, Issuers 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”). 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 otherwise furnish 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 20 business days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 Issuers shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 (which may be contained in the applicable letter of transmittal) 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, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under of the Securities Act, of the Company, Issuers 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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 as to form 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Hexion Specialty Chemicals, Inc.)
Registered Exchange Offer. Unless The Company shall, at its cost, prepare and, not permitted by applicable law later than 60 days after (or Commission if the 60th day is not a business day, the first business day thereafter) the Issue Date (as defined belowin the Indenture) policyof the Notes, the Company, at its own cost, shall prepare and file with the United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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 Notes (as defined in Section 6(d) 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 SecuritiesNotes, a like aggregate principal amount of debt securities (the “"Exchange Securities”Notes") of the Company, Company issued under the Indenture and identical in all material respects to the Initial Securities Notes (except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereofNotes) that are would be registered under the Securities Act. The Company shall use its commercially reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 150 days (or if the 360th 150th day is not a business day, the first business day thereafter) after the date of original issue Issue Date of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Notes and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, longer if required by applicable law) after the commencement date on which notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “"Exchange Offer Registration Period”"). Promptly after If the Company effects the Registered Exchange Offer Registration PeriodOffer, the Company shall accept will be entitled to close the Registered Exchange Offer 30 days after the commencement thereof; provided, however, that the Company has accepted all the Initial Securities Notes theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. 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(d) hereof) Notes 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 Holder’s business and 's business, has no arrangements 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. In connection with such Registered Exchange Offer, the Company shall take such further action, including, without limitation, appropriate filings under state securities laws, as may be necessary to realize the foregoing objective subject to the proviso of Section 3(h). 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 SecuritiesNotes, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities Notes (an “"Exchanging Dealer”"), is required to deliver a prospectus containing the information required under set forth in Annex A hereto on the Securities Act cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and 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 and (ii) an Initial Purchaser that elects to sell Exchange Securities Notes acquired in exchange for Initial Securities Notes 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, effective and to amend and supplement the prospectus contained therein, 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 SecuritiesNotes; 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 after the expiration date of the Registered Exchange Offer and the period ending on the date on which all Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities Notes held by them (unless such period is extended pursuant to Section 3(j) below) ), and (ii) the Company shall make such prospectus, prospectus and any amendment or supplement thereto, thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities Notes 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 Notes acquired by it as part of its initial distribution, the Company, simultaneously with the delivery of the 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 Notes 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 Notes (the “"Private Exchange Securities”Notes"). The Initial SecuritiesNotes, the Exchange Securities Notes and the Private Exchange Securities Notes are herein collectively called the “"Securities”". In connection with the Registered Exchange Offer, the Company shall:
(a) mail or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States Trustee;
(d) permit Holders to withdraw tendered Securities Notes 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 lawslaw. 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 of the Initial Securities Notes validly tendered and not withdrawn pursuant to the Registered Exchange Offer and or the Private Exchange, as the case may be;
(yii) deliver to the Trustees Trustee for cancellation all of the Initial Securities Notes so accepted for exchange; and
(ziii) cause the Trustees Trustee to authenticate and promptly deliver promptly to each Holder of the Initial Securities, Exchange Securities Notes or Private Exchange SecuritiesNotes, as the case may be, equal in principal amount to the Initial Securities Notes of such each Holder so accepted for exchange. The terms of the Initial Securities Indenture will provide that the Exchange Securities Notes 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. Interest on each Exchange Security class 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 that none of the Initial SecuritiesSecurities will have the right to vote or consent as a class separate from one another on any matter. 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 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 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 under of the Securities Act, of the CompanyCompany 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, dealer and that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities Notes, 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 comply with the deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)Notes. 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 will comply 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 will 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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (FSC Semiconductor Corp)
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policyafter the Company has complied with the ultimate paragraph of this Section 1), the Company, at its own cost, Company shall prepare and and, not later than 45 days (such 45th 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 United States Securities and Exchange Commission (the “"Commission”") a registration statement (the “"Exchange Offer Registration Statement”") on an appropriate form under the United States 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(d) 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 and Indenture, identical in all material respects to the Initial Securities (Securities, except for the transfer restrictions relating to the Initial Securities and the provisions relating to the matters described in Section 6 hereof) that are such securities shall be registered under the Securities ActAct (the "Exchange Securities"). The Company shall use its all commercially reasonable efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act and on or prior to complete the Registered Exchange Offer within 360 180 days (or if the 360th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) Closing Date (such 360th day, or first business 180th day thereafter, herein referred to as the “Consummation being an "Effectiveness Deadline”") and to cause (ii) keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement of date on which the Registered Exchange Offer Registration Statement is declared effective by the Commission (such period being called the “"Exchange Offer Registration Period”"). Promptly If the Company commences the Registered Exchange Offer, the Company shall use all commercially reasonable efforts to consummate the Registered Exchange Offer no later than 40 days after the date on which the Exchange Offer Registration Period, Statement is declared effective (such 40th day being the Company shall accept all the Initial Securities validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer"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(d) 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 Holder’s '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”"), is required to deliver a prospectus containing the information required under set forth in (a) Annex A hereto on the Securities Act 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, 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 efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, 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 OfferOffer (or such shorter period during which broker-dealers are required by law to deliver such prospectus); provided further, that during such period the Company may suspend the availability of the Exchange Offer Registration Statement, without being required to pay any Additional Interest, upon written notice to each Exchange Dealer, the Initial Purchasers, the Holders of Transfer Restricted Securities and any broker-dealer (which notice shall be accompanied by an instruction to suspend the use of any prospectus), for one or more periods not to exceed 60 consecutive days in any 90-day period, and not to exceed, in the aggregate, 90 days in any 365-day period (each such period, a "Suspension Period") if there is a possible acquisition, business combination, other similar transaction, business development, or event involving the Company that would require the disclosure thereof in the Exchange Offer Registration Statement and the Company reasonably determines in the exercise of its good faith judgment that such disclosure, at such time, would have a material adverse effect on the business of the Company (and its subsidiaries taken as a whole). 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, 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”"). 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 or otherwise furnish 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 20 business 30 days (or longer, if required by applicable law) after the commencement of date on which the Registered Exchange OfferOffer Registration Statement was declared effective by the Commission;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In additionIf 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 may file will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer Registration Statement pursuant Offer. The Company will pursue the issuance of such a decision to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under Commission staff level. In connection with the Canadian and U.S. shelf offering procedures. Under MJDSforegoing, the Company will take all such other actions as may file a prospectus and a prospectus supplement, if applicable, to be contained requested by the Commission or otherwise required in such registration statement connection with the applicable securities regulatory authorities issuance of such decision, including without limitation (i) participating in Canada and concurrently file the registration statement telephonic conferences with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery , (ii) delivering to the Commission of staff an analysis prepared by counsel to the notification of clearance Company setting forth the legal bases, if any, upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) using all commercially reasonable efforts to pursue a resolution (which need not be favorable) by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities ActCommission staff.
Appears in 1 contract
Registered Exchange Offer. Unless not permitted by applicable law or Commission (as defined below) policy, The Company and the CompanyGuarantors shall, at its their own cost, shall use commercially reasonable efforts to prepare and and, 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”), file with the United States Securities and Exchange Commission (the “Commission”) a registration statement (the “Exchange Offer Registration Statement”) on an appropriate form under the United States 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(d) 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 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 are would be registered under the Securities Act. The Company and the Guarantors shall use its their commercially reasonable efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act and to complete the Registered Exchange Offer within 360 365 days (or if the 360th 365th day is not a business day, the first business day thereafter) after the date of original issue of the Initial Securities (the “Issue Date”) (such 360th day, or first business day thereafter, herein referred to as the “Consummation Deadline”) Date and to cause shall keep the Exchange Offer Registration Statement to remain effective continuously thereafter until the consummation of the Registered Exchange Offer. The Company shall keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, if required by applicable law) after the commencement date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the “Exchange Offer Registration Period”). Promptly after If the Company commences the Registered Exchange Offer Registration PeriodOffer, the Company and the Guarantors shall accept use their commercially reasonable efforts to consummate the Registered Exchange Offer within 30 days after the commencement thereof provided that the Company has accepted all the Initial Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Registered Exchange Offer. Following the declaration of 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 (as defined in Section 6(d) 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 Holder’s business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not otherwise 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. Notwithstanding anything contained herein, the Company shall not be required to make a Registered Exchange Offer in any province or territory of Canada or to accept Initial Securities surrendered by residents of Canada in the Registered Exchange Offer unless the distribution of Exchange Securities pursuant to such offer can be effected pursuant to exemptions from the registration and prospectus requirements of the applicable securities laws of such province or territory and, as a condition to the sale of their Initial Securities pursuant to a Registered Exchange Offer, such Holders of Initial Securities in Canada will be required to make certain representations to the Company and the Guarantors, including a representation that they are entitled under the applicable securities laws of such province or territory to acquire the Exchange Securities without the benefit of a prospectus qualified, or the participation of a registrant, under such securities laws. In addition and for greater certainty, the Company shall not be required to take steps to make effective any Exchange Offer Registration Statement (as defined in Section 2 hereof), or otherwise take any steps to guaranty the Initial Securities or the Exchange Securities, under the securities laws of any of the provinces and territories in Canada. 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 required under set forth in (a) Annex A hereto on the Securities Act 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, Offer and (ii) an Initial Purchaser that elects to sell Exchange Securities 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 and the Guarantors shall use its their commercially reasonable efforts to keep the Exchange Offer Registration Statement effective, 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 period ending on 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, prospectus and any amendment or supplement thereto, available to any broker-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 If any Initial Purchaser determines that it is not eligible to participate in the Registered Exchange OfferOffer with respect to the exchange of securities constituting any portion of an unsold allotment, any at the written request of such Initial Purchaser holds Initial Securities acquired by it as part of its initial distributionPurchaser, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, Company shall issue and deliver to such Initial Purchaser upon or the written request of person purchasing Exchange Securities registered under a Shelf Registration Statement as contemplated by Section 2 hereof from such Initial Purchaser, in exchange (the “Private Exchange”) for the Initial Securities held by such Initial PurchaserSecurities, a like principal amount of debt securities of Exchange Securities. The Company shall use its commercially reasonable efforts to cause the Company, CUSIP Service Bureau to issue the same CUSIP number for such Exchange Securities as for Exchange Securities 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 pursuant to the matters described in Section 6 hereof) to the Initial Securities (the “Private Registered Exchange Securities”)Offer. 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 otherwise furnish 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, and in the case of Holders in Canada, any “wrapped version” thereof used in connection with the private placement of the Exchange Securities;
(b) keep the Registered Exchange Offer open for not less than 20 business 30 days (or longer, longer if required by applicable law) after the commencement of date notice thereof is mailed to the Registered Exchange OfferHolders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in the Manhattan, The City of New York, which may be the United States Trustee or an affiliate of the United States 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 beOffer, the Company shall:
(x) accept for exchange all of the Initial Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private ExchangeOffer;
(y) deliver deliver, or cause to be delivered, to the Trustees Trustee for cancellation all of the Initial Securities so accepted for exchange; and
(z) cause the Trustees 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 terms of the Initial Securities 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 classclass 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 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 under of the Securities Act, of the Company, 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 comply with the be required to acknowledge that it will deliver a prospectus delivery requirements of the Securities Act in connection with any resale of such Exchange Securities by delivering a prospectus included in an effective Registration Statement (as defined in Section 2(a) hereof)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. In addition, the Company may file the Exchange Offer Registration Statement pursuant to the Canada-U.S. multijurisdictional disclosure system (‘‘MJDS”), which may be a registration under the Canadian and U.S. shelf offering procedures. Under MJDS, the Company may file a prospectus and a prospectus supplement, if applicable, to be contained in such registration statement with the applicable securities regulatory authorities in Canada and concurrently file the registration statement with the Commission. Such registration statement filed with the Commission will become effective under the Securities Act upon delivery to the Commission of the notification of clearance by the applicable Canadian securities regulatory authorities and may not be subject to a review by the Commission. If the Company files the Exchange Offer Registration Statement under MJDS, the prospectus and the prospectus supplement, if applicable, contained in such registration statement will comply principally with the rules and regulations of the applicable Canadian securities regulatory authorities and may be subject to review by the applicable Canadian securities regulatory authorities. If the Company is not permitted to file an Exchange Offer Registration Statement under MJDS, the Company may use any other available registration statement form under the Securities Act.
Appears in 1 contract
