Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer to the Holders to exchange all of the Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law: (i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities validly tendered will be accepted for exchange; (ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”); (iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement; (iv) that Holders electing to have a Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the Act; and (v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission 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 his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer shall: (i) accept for exchange Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and (ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities or portions thereof so accepted for exchange by the Issuer and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Securities surrendered by such Holder. The Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. (b) In the event that (i) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding. The Issuer further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. (c) The Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement. (d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities. (e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (DPL Inc), Registration Rights Agreement (DPL Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to prepare and cause to be filed by with the date that is the SEC no later of (i) 365 than 90 days after following the date of the original issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and shall use its reasonable best efforts to have cause such Registration Statement to be declared effective under the 1933 Act by the SEC no later than December 20, 2003 and remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to shall have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)than January 19, 2004. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange DateDate (but in any event no later than January 19, 2003, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above and Company shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECSEC and (ii) the tendering of Registrable Securities in accordance with the Exchange Offer. Each Holder of Registrable Securities (other than Participating Broker-Dealers) who wishes to exchange such Registrable Securities for Exchange Securities in the Exchange Offer (a) shall have represented (or by tendering its Registrable Securities, be deemed to have represented) that (i) it is not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company, (ii) any Exchange Securities to be received by it were acquired in the ordinary course of its business and (iii) at the time of the commencement of the Exchange Offer, it has no arrangement with any person to participate in the distribution (within the meaning of the 0000 Xxx) of the Exchange Securities and (b) shall have made such other representations as may reasonably be necessary under applicable SEC rules, regulations or interpretations to render the use of Form F-4 or another appropriate form under the 1933 Act available. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, or (ii) the Exchange Offer is not consummated on has been completed and in the Exchange Offer Closing Deadline opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one constituting any portion of its affiliates, then, upon such Holder’s written requestan unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date determination or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiii) of the preceding sentence, the Issuer Company shall file and use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on is not consummated or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after January 19, 2004 the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual SEC (such additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)interest, the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities"Special Interest").
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Empresa Nacional De Electricidad S A), Registration Rights Agreement (Empresa Nacional De Electricidad S A)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and Holdings shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective as promptly as reasonably practicable an Exchange Offer Registration Statement covering the offer by the Issuer Company and Holdings to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Exchange Offer Registration Statement declared effective as promptly as reasonably practicable and remain effective until the closing of the Exchange Offer. The Issuer Company and Holdings shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its their reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and Holdings shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation Date, provided, however, that, if any of the Exchange OfferRegistrable Securities are in book-entry form, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) Prospectus and accompanying documents shall also specify how such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder surrender is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its marketeffected in accordance with applicable book-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the Actentry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and Holdings shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and Holdings and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and Holdings shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and Holdings shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer determines Company and Holdings determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by July 31, 2003 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed and in the opinion of counsel for the Placement Agents, a copy of which is forwarded to the public without delivering Company, a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and Holdings shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice notification is given to the IssuerCompany and Holdings, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC as promptly as reasonably practicable. In the event that the Issuer is Company and Holdings are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and Holdings shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer agrees Company and Holdings agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and Holdings further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and Holdings for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its their reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon thereafter as thereafter is practicable. The Issuer agrees Company and Holdings agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and Holdings shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume; provided, further, that if the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with as described in this clause (d) by reason of any information relating to a Holder furnished to the Company or Holdings in writing by such Holder expressly for use in such Shelf Registration Statement, then the provisions of the following sentence shall be inapplicable with respect to such Holder. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)July 31, 2003, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer acknowledges Company and Holdings acknowledge that any failure by the Issuer Company and Holdings to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations of the Company and Holdings under Section 2(a) and Section 2(b) hereof.
(f) In the event that the Exchange Offer has been completed but (i) at any time before or after completion of the Exchange Offer, any Securities shall have been sold or otherwise transferred pursuant to an effective Shelf Registration Statement or to the public pursuant to Rule 144 (or any similar rule then in force, but not Rule 144A) under the 1933 Act and, as a result, shall have ceased to be Registrable Securities, or (ii) any Securities not exchanged in the Exchange Offer shall otherwise have ceased to be Registrable Securities, the Company and Holdings will make available to the Holders the opportunity to exchange such Securities for identical Securities of like tenor and principal amount at maturity but bearing the same CUSIP number as the Exchange Securities.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 6, 2017 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement with respect to such Registrable Securities will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior with respect to Registrable Securities is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement with respect to such Registrable Securities is not declared effective on or prior to 90 days after December 6, 2017 (and in the case of a Shelf Filing Obligation arises (which shall Registration Statement with respect to such Registrable Securities, thereafter ceases to be effective as provided in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”preceding sentence), the annual interest rate on the Registrable such Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer with respect to such Registrable Securities is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement with respect to such Registrable Securities is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Issuer Company, shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the Exchange Offer to exchange all of the Securities Registrable Certificates for Exchange Securities Certificates, to have such Exchange Offer Registration Statement declared effective and to have such Exchange Offer Registration Statement remain effective until the closing of the such Exchange Offer. The Issuer Company shall commence the such Exchange Offer promptly after the such Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the such Exchange Offer consummated on or prior to not later than 270 days after the date that Plan Effective Date (or, if the last day of such 270 day period is not a business day, the later of (ifirst business day thereafter) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company shall commence the such Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the such Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Certificates validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (such dates, the “Exchange Dates”);
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Certificate exchanged pursuant to the such Exchange Offer will be required to (a) surrender such SecurityRegistrable Certificate, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities the Registrable Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last Exchange DateDate for any such Exchange Offer, the Issuer Company shall:
(i) accept for exchange Securities the Registrable Certificates or portions thereof validly tendered and not validly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Certificates or portions thereof so accepted for exchange by the Issuer Company and, subject to Section 4.01(f) and issueSection 4.04 of the Trust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Securities Registrable Certificates surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the such Exchange Offer. The Except as set forth in Section 2(b), such Exchange Offer shall not be subject to any conditions, other than that the such Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the Holders to whom such Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of the Registrable Certificates in such Exchange Offer. If the Company effects the Exchange Offer, the Company shall be entitled to close such Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Certificates theretofore validly tendered and not withdrawn in accordance with the terms of such Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of such Exchange Offer (i) any Exchange Certificates received by such Holder will be acquired by such Holder in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Certificates or such Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (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 such Exchange Certificates and (v) if such Holder is a broker dealer, that it will receive such Exchange Certificates for its own account in exchange for such Certificates 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 the resale of such Exchange Certificates.
(b) In (X) in the event that the Company determines (i1) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SECSEC or (2) the issuance of the Exchange Certificates would cause the Trust to be required to become registered as an investment company under the Investment Company Act of 1940, as amended, or (Y) in the event that the Company determines that the “Exchange Offer Registration” (as defined in the Class A Registration Rights Agreement) provided for in Section 2(a) of the Class A Registration Rights Agreement is not available to Class A Certificates or if such “Exchange Offer Registration” is not consummated for any reason and a “Shelf Registration Statement” (as defined in the Class A Registration Rights Agreement) is filed with respect to Class A Certificates, then the Company (in the case of clause (X)) shall, and (in the case of clause (Y)) shall have the option to, in lieu of effecting the registration of the Exchange Certificates pursuant to an Exchange Offer Registration Statement and at no cost to the holders of the Registrable Certificates, (i) as promptly as practicable, file with the SEC a shelf registration statement covering resales of the Registrable Certificates (each, a “Shelf Registration Statement”), (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause such Shelf Registration Statement to be filed as soon as practicable declared or otherwise become effective under the Securities Act by the 90th day after the Exchange Deadline (or, if such determination90th day is not a business day, date or notice is given to the Issuer, as the case may be first business day thereafter) (the “Shelf Filing ObligationRegistration Deadline”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities ) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the effective such Shelf Registration Statement continuously effective for a period of one year after its effective date (or for such shorter period that will terminate as shall end when all of the Registrable Securities Certificates covered by the such Shelf Registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration Statement or are no longer outstandingSecurities Act). The Issuer Company further agrees to supplement or amend the any such Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the any registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities Certificates pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the Pass Through Trust Agreement, if neither such Exchange Offer is consummated nor such Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Shelf Registration Deadline, the interest rate on the Certificates will be increased by 0.50% per annum effective as of the first day after the Shelf Registration Deadline but only until such Exchange Offer is consummated or such Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If such Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve-month period, during the period that such Shelf Registration Statement is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Certificates shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as such Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, such Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of the Registrable Securities Certificates pursuant to a such Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court;
(B) the occurrence of any event or the existence of any fact, as a result of which such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not declared effective on misleading, with respect to which notice has been given by the Company pursuant to Section 3(i); or
(C) the occurrence or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completedexistence of any pending corporate development that, in the case discretion of an Exchange Offerthe Company, or makes it appropriate to suspend the availability of such Shelf Registration Statement is declared effective with respect to which notice has been given by the SEC. Company pursuant to Section 3(e).
(e) The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such maximum possible increase in the interest rate. The additional interest payable rate per annum on the Registrable Securities described in this clause (dCertificates pursuant to Section 2(d) hereof, at any time, shall be payable on the regular interest payment dates for the Registrable Securities0.50%.
(ef) Without limiting the remedies available to the Initial Purchasers and the applicable Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the such Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any such Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
(g) Each Holder of Certificates agrees that, for so long as Certificates remain outstanding, such Holder may offer, sell or otherwise transfer Certificates only to qualified institutional buyers in compliance with, and within the meaning of, Rule 144A of the rules and regulations promulgated under the 1933 Act. In addition, each Holder of Certificates or Exchange Certificates issued with respect to Certificates, as the case may be, agrees that, for so long as such Certificates remain outstanding, including after the consummation of an Exchange Offer Registration as provided in Section 2(a) above or a Shelf Registration as provided in Section 2(b) above, such Certificates shall bear the restrictive legends set forth in Section 4.02 or 4.03, as applicable, of the Trust Supplement.
Appears in 1 contract
Samples: Registration Rights Agreement (American Airlines Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 27, 2001 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales sale by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one them of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)December 27, 2001, the annual interest rate on the Registrable Securities (and the Exchange Securities) will be increased increase by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness DeadlineDecember 27, as applicable, 2001 until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Extended Stay America Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall (A) use its reasonable best efforts to prepare and, as soon as practicable but not later than 120 days following the Closing Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form under the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to the Holders, in exchange for the Registrable Securities, of a like principal amount of Exchange Securities, (B) use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering to be declared effective under the offer by 1933 Act not later than 180 days after the Issuer Closing Date (the "Effectiveness Deadline"), (C) use its reasonable best efforts to keep the Holders to exchange all of the Securities for Exchange Securities and to have such Offer Registration Statement remain effective until the closing of the Exchange Offer. The Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, and (D) use its reasonable best efforts to have cause the Exchange Offer to be consummated on or prior to as promptly as practicable, but in any event not later than the date that is 30 Business Days after the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Effectiveness Deadline”). The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
: (i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
; (ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the “"Exchange Dates”");
; (iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain thereafter be entitled to receive any Additional Interest or be entitled to any registration rights under this Registration Rights Agreement;
; (iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters related letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice exchange offer Prospectus or the accompanying documents prior to the close of business time the Exchange Offer terminates (which shall not be earlier than 5:00 p.m., New York City time) on the last Exchange Date Date; and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the Act; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business time the Exchange Offer terminates (which shall not be earlier than 5:00 p.m., New York City time) on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice exchange offer Prospectus or the accompanying documents a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Issuer Company shall:
: (i) accept for exchange all Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
and (ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC.
. The Company shall inform the Representative of the names and addresses of the Holders to whom the Exchange Offer is made, and the Representative shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder has no 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 of the Securities Act, of the Company or, if it is such an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker- dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities within the meaning of the 1933 Act, (v) if such Holder is a broker-dealer, that it will receive Exchange Securities in exchange for Securities that were acquired for its own account as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities, and (vi) if such Holder is a broker-dealer, that it did not purchase the Securities being tendered in the Exchange Offer directly from the Company for resale pursuant to Rule 144A or any other available exemption from registration under the Securities Act. (b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is for any other reason not consummated on within 30 Business Days following the Exchange Offer Closing Deadline Effectiveness Deadline, or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to has been completed and the public without delivering Representative has determined, based upon the opinion of legal counsel, that a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate must be filed or available for such resales a Prospectus must be delivered by such Holder, the Initial Purchasers in connection with any offering or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination or the date or that notice of such determination by the Representative is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a and to keep the related Prospectus current until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer shall have been sold to the public pursuant to Rule 144(k) (or similar provision then in force, but not Rule 144A) under the 1933 Act or shall have ceased to be outstanding. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement and/or the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement and/or the related Prospectus to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
. (c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b)) including, but not limited to, the fees and expenses of one counsel to be selected by the Representative or, if the Representative elects not to select such counsel, by the Majority Holders and which counsel may also be counsel for the Initial Purchasers. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by September 10, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales sale by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one them of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)September 10, 1998, the annual interest rate on the Registrable Securities (and the Exchange Securities) will be increased increase by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness DeadlineSeptember 10, as applicable, 1998 until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Extended Stay America Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by March 17, 2011 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the one-year period of one year applicable to securities held by non-affiliates referred to in Rule 144 under the Securities Act or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)March 17, 2011, the annual interest rate on the Registrable Securities will be increased by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SECSEC (the “Staff”), the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective file an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities as soon as practicable after the Closing Time and (ii) use their reasonable best efforts to have such the Exchange Offer Registration Statement remain declared effective until by the closing of the SEC as promptly as practicable after such Exchange OfferOffer Registration Statement has been filed. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered (including any Registrable Security that is tendered and validly withdrawn) will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and the Guarantors and issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff Staff. The Company shall inform the Initial Purchasers of the SECnames and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) Business Days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). The Exchange Offer shall provide that each Holder participating in the Exchange Offer shall represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities, (iii) such Holder is not affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines that Company and the Guarantors are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or that because the Exchange Offer may is not be consummated permitted by the Exchange Offer Closing Deadline because it would violate applicable law or the any applicable interpretations interpretation of the Staff of the SECStaff, (ii) for any reason, the Exchange Offer is not consummated on or before 365 days after the Exchange Offer Closing Deadline Time, or (iii) with respect to any Holder Beneficial Owner of Registrable Securities notifies the Company that (A) such Holder it is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or ; (B) such Holder it may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, resales; or (C) such Holder it is a Brokerbroker-Dealer dealer and holds owns Securities acquired directly from the Issuer Company or one an affiliate of its affiliatesthe Company, then, upon such Holder’s written request, then the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed as soon as practicable file after such determination, determination date or notice is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and use their reasonable best efforts to have such cause the Shelf Registration Statement to be declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Issuer Company and the Guarantors shall use its reasonable their best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the earlier of one year or such shorter period that will terminate when (i) 2 years from the Closing Time and (ii) the date on which all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or registered thereunder are no longer outstandingdisposed of in accordance therewith. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a1) we do not the Company and the Guarantors fail to consummate the Exchange Offer on or prior to before 365 days after the Exchange Offer Closing Deadline or Time; (b2) a Shelf Registration Statement is required to be filed pursuant to Section 2(b) but has not been declared effective on or prior to 90 within 365 days after the Closing Time (or if such 365th day is not a Business Day, the next succeeding Business Day); or (3) the Shelf Filing Obligation arises (which shall in no event be earlier than Registration Statement or the Exchange Offer Closing DeadlineRegistration Statement is declared effective but thereafter ceases to be effective or usable in connection with resales or exchanges of Registrable Securities for a period of more than 30 consecutive days (each such event referred to in clause (1) through (the 3) above, a “Effectiveness DeadlineRegistration Default”), then with respect to the annual first 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Registrable Securities will be increased by 0.500.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate per annum on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one principal amount of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information Holder. The amount of additional interest will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.00% per annum. All accrued additional interest will be paid by the Company on each interest payment date to the Issuer when so requested will not be entitled Holder of a global note by wire transfer of immediately available funds or by federal funds check and to any Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such increase in accounts have been specified. Following the interest rate. The cure of all Registration Defaults, the accrual of additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieswill cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s and the Guarantors’ respective obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SECSEC (the “Staff”), the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective file an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities as soon as practicable after the Closing Time and (ii) use their reasonable best efforts to have such the Exchange Offer Registration Statement remain declared effective until by the closing of the SEC as promptly as practicable after such Exchange OfferOffer Registration Statement has been filed. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered (including any Registrable Security that is tendered and validly withdrawn) will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and the Guarantors and issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff Staff. The Company shall inform the Initial Purchasers of the SECnames and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) Business Days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). The Exchange Offer shall provide that each Holder participating in the Exchange Offer shall represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities, (iii) such Holder is not affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines that Company and the Guarantors are not permitted to consummate the Exchange Offer Registration provided for in Section 2(a) above is not available or that because the Exchange Offer may is not be consummated permitted by the Exchange Offer Closing Deadline because it would violate applicable law or the any applicable interpretations interpretation of the Staff of the SECStaff, (ii) for any reason, the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or before October 1, 2013, or (iii) with respect to any Holder Beneficial Owner of Registrable Securities notifies the Company that (A) such Holder it is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or ; (B) such Holder it may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, resales; or (C) such Holder it is a Brokerbroker-Dealer dealer and holds owns Securities acquired directly from the Issuer Company or one an affiliate of its affiliatesthe Company, then, upon such Holder’s written request, then the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed as soon as practicable file after such determination, determination date or notice is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and use their reasonable best efforts to have such cause the Shelf Registration Statement to be declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiiii)(B) of the preceding sentence, the Issuer Company and the Guarantors shall use its reasonable their best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the earlier of one year or such shorter period that will terminate when (i) October 1, 2014 and (ii) the date on which all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or registered thereunder are no longer outstandingdisposed of in accordance therewith. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a1) we do not the Company and the Guarantors fail to consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or before October 1, 2013; (b2) a Shelf Registration Statement is required to be filed pursuant to Section 2(b) but has not been declared effective on or prior to 90 days after before October 1, 2013; or (3) the Shelf Filing Obligation arises (which shall in no event be earlier than Registration Statement or the Exchange Offer Closing DeadlineRegistration Statement is declared effective but thereafter ceases to be effective or usable in connection with resales or exchanges of Registrable Securities for a period of more than 30 consecutive days (each such event referred to in clause (1) through (the 3) above, a “Effectiveness DeadlineRegistration Default”), then with respect to the annual first 90-day period immediately following the occurrence of the first Registration Default, the interest rate on the Registrable Securities will be increased by 0.500.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate per annum on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one principal amount of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information Holder. The amount of additional interest will increase by an additional 0.25% per annum on the principal amount of Securities with respect to each 90-day period until all Registration Defaults have been cured, up to maximum amount of additional interest for all Registration Defaults of 1.00% per annum. All accrued additional interest will be paid by the Company on each interest payment date to the Issuer when so requested will not be entitled Holder of a global note by wire transfer of immediately available funds or by federal funds check and to any Holders of certificated notes by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such increase in accounts have been specified. Following the interest rate. The cure of all Registration Defaults, the accrual of additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieswill cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s and the Guarantors’ respective obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice Prospectus is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Securities not tendered will remain outstanding and shall continue to accrue interestinterest at the initial rate borne by the Registrable Securities and, but other than Registrable Securities referred to in Section 2(b) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate countersign and register and mail to each Holder, Exchange Securities with an Exchange Security equal in aggregate principal amount equal to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer Company shall not be subject inform the Initial Purchasers of the names and addresses of the Holders to any conditions, other than that whom the Exchange Offer does not violate is made, and the Initial Purchasers shall have the right, subject to applicable law or any applicable interpretation law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Staff of the SECExchange Offer.
(b) In the event that (i) the Issuer determines that the Exchange Offer has been completed and, in the opinion of counsel for the Initial Purchasers, a Registration provided for Statement must be filed and a Prospectus must be delivered by any Initial Purchaser in Section 2(a) above is not available connection with any offering or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired held by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestconstitute an unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after the rendering of such determinationopinion and the delivery thereof, date or notice if written, is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Company, a Shelf Registration Statement providing for the sale by the Holders Initial Purchasers of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result The Initial Purchasers shall sell out their unsold allotments before making sales of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable any other Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales Initial Purchasers shall notify the Company upon the sale of Registrable Securities held by the Holders after completion all of the Exchange Offertheir unsold allotments. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextel Communications Inc)
Registration Under the 1933 Act. (a) To The Company and the extent Subsidiary Guarantors shall prepare, and not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 than 60 days after following the date of original issuance of the Securities and (ii) 90 days after Securities, shall file with the consummation of the Merger, and cause to become effective SEC an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Subsidiary Guarantors shall cause the Exchange Offer to be declared effective under the 1933 Act not later than 150 days after the date of original issuance of the Securities. The Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled entitle to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by but the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC.
(b) In the event that (i) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding. The Issuer further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the Exchange Offer to exchange all of the Securities Registrable Certificates for Exchange Securities Certificates, to have such Exchange Offer Registration Statement declared effective and to have such Exchange Offer Registration Statement remain effective until the closing of the such Exchange Offer. The Issuer Company shall commence the such Exchange Offer promptly after the such Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the such Exchange Offer consummated on or prior to not later than 270 days after the date that Plan Effective Date (or, if the last day of such 270 day period is not a business day, the later of (ifirst business day thereafter) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company shall commence the such Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the such Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Certificates validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (such dates, the “Exchange Dates”);
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Certificate exchanged pursuant to the such Exchange Offer will be required to (a) surrender such SecurityRegistrable Certificate, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities the Registrable Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last Exchange DateDate for any such Exchange Offer, the Issuer Company shall:
(i) accept for exchange Securities the Registrable Certificates or portions thereof validly tendered and not validly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Certificates or portions thereof so accepted for exchange by the Issuer Company and, subject to Section 4.01(f) and issueSection 4.04 of the Trust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Securities Registrable Certificates surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the such Exchange Offer. The Except as set forth in Section 2(b), such Exchange Offer shall not be subject to any conditions, other than that the such Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the Holders to whom such Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of the Registrable Certificates in such Exchange Offer. If the Company effects the Exchange Offer, the Company shall be entitled to close such Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Certificates theretofore validly tendered and not withdrawn in accordance with the terms of such Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of such Exchange Offer (i) any Exchange Certificates received by such Holder will be acquired by such Holder in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Certificates or such Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (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 such Exchange Certificates and (v) if such Holder is a broker dealer, that such Holder will receive such Exchange Certificates for its own account in exchange for such Certificates that were acquired as a result of market making activities or other trading activities and that such Holder will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Certificates.
(b) (X) In the event that the Company determines (i1) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SECSEC or (2) the issuance of the Exchange Certificates would cause the Trust to be required to become registered as an investment company under the Investment Company Act of 1940, as amended, or (Y) in the event that the Company determines that the “Exchange Offer Registration” (as defined in the Class A and Class B Registration Rights Agreement) provided for in Section 2(a) of the Class A and Class B Registration Rights Agreement is not available to Class A Certificates or the Class B Certificates (as applicable) or if such “Exchange Offer Registration” is not consummated for any reason and a “Shelf Registration Statement” (as defined in the Class A and Class B Registration Rights Agreement) is filed with respect to Class A Certificates or the Class B Certificates (as applicable), then the Company (in the case of clause (X)) shall, and (in the case of clause (Y)) shall have the option to, in lieu of effecting the registration of the Exchange Certificates pursuant to an Exchange Offer Registration Statement and at no cost to the holders of the Registrable Certificates, (i) as promptly as practicable, file with the SEC a shelf registration statement covering resales of the Registrable Certificates (each, a “Shelf Registration Statement”), (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause such Shelf Registration Statement to be filed as soon as practicable declared or otherwise became effective under the Securities Act by the 90th day after the Exchange Deadline (or, if such determination90th day is not a business day, date or notice is given to the Issuer, as the case may be first business day thereafter) (the “Shelf Filing ObligationRegistration Deadline”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities ) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the effective such Shelf Registration Statement continuously effective for a period of one year after its effective date (or for such shorter period that will terminate as shall end when all of the Registrable Securities Certificates covered by the such Shelf Registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration Statement or are no longer outstandingSecurities Act). The Issuer Company further agrees to supplement or amend the any such Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the any registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities Certificates pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the Pass Through Trust Agreement, if neither such Exchange Offer is consummated nor such Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Shelf Registration Deadline, the interest rate on the Certificates will be increased by 0.50% per annum effective as of the first day after the Shelf Registration Deadline but only until such Exchange Offer is consummated or such Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If such Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve-month period, during the period that such Shelf Registration Statement is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Certificates shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as such Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, such Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of the Registrable Securities Certificates pursuant to a such Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court;
(B) the occurrence of any event or the existence of any fact, as a result of which such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not declared effective on misleading, with respect to which notice has been given by the Company pursuant to Section 3(i); or
(C) the occurrence or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completedexistence of any pending corporate development that, in the case discretion of an Exchange Offerthe Company, or makes it appropriate to suspend the availability of such Shelf Registration Statement is declared effective with respect to which notice has been given by the SEC. Company pursuant to Section 3(e).
(e) The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such maximum possible increase in the interest rate. The additional interest payable rate per annum on the Registrable Securities described in this clause (dCertificates pursuant to Section 2(d) hereof, at any time, shall be payable on the regular interest payment dates for the Registrable Securities0.50%.
(ef) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the such Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any such Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
(g) Each Holder of Certificates agrees that, for so long as Certificates remain outstanding, such Holder may offer, sell or otherwise transfer Certificates only to qualified institutional buyers in compliance with, and within the meaning of, Rule 144A of the rules and regulations promulgated under the 1933 Act. In addition, each Holder of Certificates or Exchange Certificates issued with respect to Certificates, as the case may be, agrees that, for so long as such Certificates remain outstanding, including after the consummation of an Exchange Offer Registration as provided in Section 2(a) above or a Shelf Registration as provided in Section 2(b) above, such Certificates shall bear the restrictive legends set forth in Section 4.02 or 4.03, as applicable, of the Trust Supplement.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its reasonable their best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for a like aggregate amount of Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly no later than 15 days after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable their best efforts to have the Exchange Offer consummated on or prior to not later than 240 days after the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not properly tendered or validly withdrawn on or prior to the Exchange Date will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, election by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter letter, which shall be received by the institution not later than the close of business on the last Exchange Date, setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly properly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and the Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its reasonable their best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on 240 days after the Exchange Offer Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement has been declared effective by the SEC and in the opinion of counsel for the Placement Agents the Exchange Offer is not appropriate available and a separate resale Registration Statement must be filed and a Prospectus must be delivered by any Placement Agent in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its reasonable their best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany and the Guarantors, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its reasonable their best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its reasonable their best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement Statement, if required, is not declared effective on or prior to 90 240 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)Date, then as liquidated damages, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadlineper annum, as applicablewith an additional increase of 0.25% per annum for each subsequent 90-day period, up to a maximum additional 1.0% per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional Any and all accrued interest rate on pursuant to this Section 2(d) shall be paid to holders of the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)entitled thereto, the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates manner provided for the Registrable Securitiespayment of interest in the Indenture, on each Interest Payment Date, as more fully set forth in the Indenture.
(e) Without limiting the remedies available to the Initial Purchasers Holders (other than the Placement Agents), the Company and the Holders, the Issuer acknowledges Guarantors acknowledge that any failure by the Issuer Company and the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or Holders (other than the Holders Placement Agents) for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder (other than the Placement Agents) may obtain such relief as may be required to specifically enforce the IssuerCompany’s and the Guarantor’s obligations under Section 2(a) and Section 2(b) hereof, provided that such Holder may not obtain such relief as may be required to specifically enforce such obligations if such failure is in connection with a material acquisition or business combination involving the Company or any of the Guarantors.
Appears in 1 contract
Samples: Registration Rights Agreement (Kinetic Concepts Inc /Tx/)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, to have such Registration Statement declared effective by the SEC within 180 days after the Closing Date, and to have such Registration Statement remain effective until six months following the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to within 210 days after the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from days, or longer if required by applicable law, after the effective date such notice is mailedof the Exchange Offer Registration Statement) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company that, at the time of the consummation of the 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 arrangement or understanding with any Person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the 1933 Act; and
(iii) such Holder is not an affiliate (as defined in Rule 405 under the 0000 Xxx) of the Company.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law of any change in law, SEC rules or regulations or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on within 210 days following the Closing Date, any Initial Purchaser requests with respect to Registrable Securities that are not eligible to be exchanged in the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited and that are held by applicable law or SEC policy from participating in it following the Exchange Offer, or (Biv) such any Holder may of the Registrable Securities (other than an Initial Purchaser) is not resell the Exchange Securities acquired by it eligible to participate in the Exchange Offer to or in the public without delivering a prospectus and case of any Initial Purchaser that the Prospectus contained participates in the Exchange Offer Registration Statement is or acquires Exchange Securities, such Initial Purchaser does not appropriate or available receive freely tradeable Exchange Securities in exchange for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Registrable Securities acquired directly from the Issuer or one constituting any portion of its affiliates, then, upon such Holder’s written requestan unsold allotment, the Issuer shall use its reasonable best efforts to Company will cause to be filed as soon as practicable after such determination, date required or notice is given requested to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities (but in no event more than 90 days after required or requested pursuant to any of the above circumstances) and to use its reasonable best efforts have such Shelf Registration Statement declared effective by the SECSEC within 180 days after required or requested pursuant to any of the above circumstances. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause clauses (iii) to (v) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the earlier of one year or two years from the date the Shelf Registration Statement is declared effective and such shorter period that will terminate when time as all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to under the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Baxter International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice Prospectus is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Securities not tendered will remain outstanding and shall continue to accrue interestinterest at the initial rate borne by the Registrable Securities and, but other than as set forth in Section 2(b) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, Exchange Securities with an Exchange Security equal in aggregate principal amount equal to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer Company shall not be subject inform the Placement Agents of the names and addresses of the Holders to any conditions, other than that whom the Exchange Offer does not violate is made, and the Placement Agents shall have the right, subject to applicable law or any applicable interpretation law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Staff of the SECExchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SECSEC relating generally to the registration of debt securities, or (ii) the Exchange Offer is not consummated on has been completed and, in the Exchange Offer Closing Deadline opinion of counsel for the Placement Agents, a Registration Statement must be filed and a Prospectus must be delivered by any Placement Agent in connection with any offering or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired held by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestconstitute an unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders (which may include the Placement Agents) in the case of all a filing under clause (i) above, and the Placement Agents in the case of the a filing under clause (ii) above, of such Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result The Placement Agents shall sell out their unsold allotments before making sales of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all any other Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales Placement Agents shall notify the Company upon the sale of Registrable Securities held by the Holders after completion all of the Exchange Offertheir unsold allotments. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on is not consummated, or prior to the Exchange Offer Closing Deadline or (b) if required a Shelf Registration Statement is not declared effective effective, on or prior to 90 days the date that is six months after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)Date, the annual interest rate on borne by the Registrable Securities will shall be increased by 0.500.5% per annum on the affected Securities from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicablesuch date, until the earliest of the date upon which (i) the Exchange Offer is completedconsummated, in the case of an Exchange Offer, or the (ii) a Shelf Registration Statement with respect to all Registrable Securities is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure or (iii) solely with respect to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver other than the Placement Agents, the expiration of the holding period applicable to Notes held by non-affiliates of the Company under Rule 144(k) under the Securities Act; provided that at such information time, upon the request of any Holder of such Securities that have otherwise ceased to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in pursuant to this clause (d) shall be payable on iii), the regular interest payment dates for Company will deliver to such Holder certificates evidencing such Holder's Securities without the Registrable Securitieslegends restricting the transfer thereof.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof; provided, that no monetary damages shall be assessed against the Company by reason of any failure by the Company to comply with its obligations under Section 2(a) and Section 2(b) hereof, it being understood that the penalty interest rates applicable to the Securities as provided in Section 2(a) hereof are intended to serve as full and complete monetary compensation to the Holders in such circumstances.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextel International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Securities Registrable Notes surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer date that is six months after the Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales sale of Registrable Notes by such Holderthe Initial Purchasers, or (C) such Holder is a Broker-Dealer and holds Securities of Registrable Notes that were acquired directly by the Initial Purchasers from the Issuer or one of its affiliates, then, upon such Holder’s written requestCompany, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Notes covered by the Shelf Registration Statement, or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (KMC Telecom Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 an Exchange Offer Registration Statement within 240 days after the date of issuance the original issue of the Securities and (ii) 90 days after the consummation of the Merger“Issue Date”), and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall use their reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the 1933 Act within 360 days after the Issue Date. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and shall use its their reasonable best efforts to have complete the Exchange Offer consummated on or prior to the date that is the later of (i) 425 not less than 40 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through the common depositary for the Securities or otherwise, stating in such Prospectus or accompanying documents in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its reasonable their best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff Staff. Upon the Placement Agents’ request, the Company and the Guarantors shall inform the Placement Agents of the SEC.
(b) In the event that (i) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations names and addresses of the Staff of the SEC, (ii) Holders to whom the Exchange Offer is not consummated on made, and the Exchange Offer Closing Deadline or (iii) with respect Placement Agents shall have the right, subject to any Holder applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell . If the Company and the Guarantors effect the Exchange Securities acquired by it in Offer, the Company and the Guarantors (i) will be entitled to close the Exchange Offer to the public without delivering a prospectus and 30 days after such commencement (provided that the Prospectus contained Company and the Guarantors have accepted all the Securities theretofore validly tendered in accordance with the terms of the Exchange Offer) and (ii) will be required to consummate the Exchange Offer not later than 40 days after the date on which the Exchange Offer Registration Statement is not appropriate or available for such resales declared effective. Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the Exchange Offer that (i) any Exchange Securities received by such HolderHolder 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 (Cwithin the meaning of the 0000 Xxx) of the Exchange Securities, (iii) such Holder is not an “affiliate,” as defined in Rule 405 under the 1933 Act, of the Company or the Guarantors or, if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable, (iv) if such Holder is not a Brokerbroker-Dealer dealer, that it is not engaged in, and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestdoes not intend to engage in, the Issuer shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all distribution of the Registrable Exchange Securities and to have (v) if such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Holder is required to file a Shelf Registration Statement solely broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of the matters referred market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in clause (iii) connection with any resale of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an such Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding. The Issuer further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SECSecurities.
(cb) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(dc) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, . The Company and the offering of Registrable Securities pursuant Guarantors will pay additional cash interest (“Additional Interest”) on the Securities:
(1) if the Company and the Guarantors fail to a Shelf file an Exchange Offer Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the 240th day after the date hereof,
(2) if the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective by the SEC on or prior to 90 days the 360th day after the Shelf Filing Obligation arises date hereof,
(which shall in no event be earlier than the Exchange Offer Closing Deadline3) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until if the Exchange Offer is completed, in not closed with respect to any of the case of an Securities that are then tendered on or before the 40th day after the Exchange Offer, or the Shelf Offer Registration Statement is declared effective, or
(4) if after the Exchange Offer Registration Statement is declared effective, such Exchange Offer Registration Statement thereafter ceases to be effective by or usable (subject to certain exceptions) (each such event referred to in the SECpreceding clauses (1) through (4), a “Registration Default”); from, and including, the date on which any such Registration Default shall occur to, but excluding, the date on which all Registration Defaults have been cured. The annual rate of the Additional Interest will be 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by an additional interest 0.25% per annum with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum Additional Interest rate on the Registrable Securities will not at any time exceed 0.50of 1.00% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rateper annum. The additional interest payable Company and the Guarantors will pay such Additional Interest on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for dates. Such Additional Interest will be in addition to any other interest payable from time to time with respect to the Registrable Securities.
(ed) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
(e) For the avoidance of doubt, no Placement Agent or other Persons that are ineligible under applicable law to participate in the Exchange Offer will have any right to cause the Company or the Guarantors to file a shelf registration, initiate a subsequent exchange offer, or take any additional action to register the Securities under the 1933 Act or enable such Securities to be sold or transferred, other than consummating the Exchange Offer in the manner set forth in this Agreement. Subject to compliance with the timing deadlines set forth in this Section 2, the Company and the Guarantors shall have complete discretion as to the timing of the Exchange Offer.
Appears in 1 contract
Samples: Registration Rights Agreement (Sensata Technologies B.V.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice Prospectus is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Securities not tendered will remain outstanding and shall continue to accrue interestinterest at the initial rate borne by the Registrable Securities and, but other than Registrable Securities referred to in Section 2(b) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount number of shares of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate countersign and register and mail to each Holder, Exchange Securities with an Exchange Security equal in aggregate principal amount at Stated Maturity (as defined in the Indenture) equal to the aggregate principal amount at Stated Maturity (as defined in the Indenture) of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer Company shall not be subject inform the Placement Agent of the names and addresses of the Holders to any conditions, other than that whom the Exchange Offer does not violate is made, and the Placement Agent shall have the right, subject to applicable law or any applicable interpretation law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Staff of the SECExchange Offer.
(b) In the event that (i) the Issuer determines that the Exchange Offer has been completed and, in the opinion of counsel for the Placement Agent, a Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not Statement must be consummated filed and a Prospectus must be delivered by the Exchange Offer Closing Deadline because it would violate applicable law Placement Agent in connection with any offering or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited held by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and them that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestconstitute an unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after the rendering of such determinationopinion and the delivery thereof, date or notice if written, is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Company, a Shelf Registration Statement providing for the sale by the Holders Placement Agent of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result The Placement Agent shall sell out its unsold allotments before making sales of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable any other Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales Placement Agent shall notify the Company upon the sale of Registrable Securities held by the Holders after completion all of the Exchange Offertheir unsold allotments. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer is not consummated on or prior to June 1, 1999, the annual interest rate borne by the Securities shall be increased by 0.5% per annum on the Securities from June 1, 1999, and, if the Exchange Offer Closing Deadline is not consummated on or prior to September 1, 1999, thereafter the annual interest rate borne by the Securities shall be increased by an additional rate of 0.5% per annum on the Securities from September 1, 1999, in each case until the earlier of the date upon which (bi) the Exchange Offer is consummated, (ii) a Shelf Registration Statement is not declared effective on or prior with respect to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the all Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by or (iii) the SEC. The annual additional interest rate on Securities become freely tradeable without registration under the Registrable Securities will not 1933 Act; at which time, in any time exceed 0.50% notwithstanding such case, upon the Issuer’s failure to meet more than one request of these requirements. If any Holder of the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)Securities, the Registrable Company will deliver to such Holder certificates evidencing such Holder's Securities held by Holders who do not deliver such information to without the Issuer when so requested will not be entitled to any such increase in legends restricting the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitiestransfer thereof.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextel Communications Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 27, 2001 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales sale by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one them of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)December 27, 2001, the annual interest rate on the Registrable Securities will be increased by 0.50% from (and the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities Securities) will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.by
Appears in 1 contract
Samples: Registration Rights Agreement (Extended Stay America Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and and, when such Registration Statement has been declared effective by the SEC, to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange during which Holders may tender Registrable Securities pursuant to the Exchange Offer (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not duly and validly tendered or duly and validly withdrawn will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his such Holder's election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:: 7 6
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer and Company; and
(iii) issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities pursuant to the Exchange Offer.
(b) In the event that (i) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations expiration of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iiiperiod referred to in Rule 144(k) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder (including the Placement Agent) shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Advanced Lighting Technologies Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder of Securities participating in the Exchange Offer shall be required to represent to the Company that at the time of consummation of the Exchange Offer (i) such Holder is not an "affiliate" of the Company within the meaning of Rule 405 under the 1933 Act, (ii) the Exchange Securities being acquired by it pursuant to the Exchange Offer are being obtained in the ordinary course of the business of the person receiving such Exchange Securities and (iii) that the Holder has no arrangement or understanding with any Person to participate in the distribution of the Exchange Securities. If such Holder is a Participating Broker-Dealer that will receive Exchange Securities for its own account as a result of market-making activities or other trading activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by June 22, 1998 or (iii) with respect to any Holder shall, within 30 days after consummation of Registrable Securities (A) the Exchange Offer, notify the Company that such Holder (x) is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (By) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (bis not consummated and, if required by Section 2(b) hereof, a Shelf Registration Statement is not declared effective on or prior to 90 days after by the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)SEC by June 22, 1999, the annual interest rate on the Registrable Securities will be increased increase by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum to 11.5% per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the a Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirementseffective. If the Issuer requests Holders of Registrable Securities to provide Company effects the information as described in Section 3(q)Exchange Offer, the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested Company will not be entitled to any such increase close the Exchange Offer provided that it has accepted all Registrable Securities theretofore validly tendered in accordance with the terms of the Exchange Offer. Registrable Securities not tendered in the Exchange Offer shall bear interest rate. The additional interest payable on at the Registrable Securities described same rate as in this clause (d) shall be payable on effect at the regular interest payment dates for time of issuance of the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Securities Registrable Notes surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer date that is six months after the Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchaser a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchaser in connection with any offering or available for such resales sale of Registrable Notes by such HolderInitial Purchaser, or (C) such Holder is a Broker-Dealer and holds Securities of Registrable Notes that were acquired directly by the Initial Purchaser from the Issuer or one of its affiliates, then, upon such Holder’s written requestCompany, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Notes covered by the Shelf Registration Statement, or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and, if a Shelf Registration Statement is required hereby, the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days the date that is six months after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)Date, the annual interest rate on the Registrable Securities will be increased by 0.50% from Notes (and on the Exchange Offer Closing Deadline or Notes) will increase by 0.5% per annum until the Effectiveness Deadline, as applicable, until date the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the a Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (KMC Telecom Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security Note equal in principal amount to the principal amount of the Securities Registrable Notes surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Exchange Offer (i) any Exchange 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 Notes within the meaning of the 1933 Act, (iii) such Holder is not an"affiliate" as defined in Rule 405 of the 1933 Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the 1933 Act to the extent applicable, (iv) if such Holder is a broker-dealer, that it will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making activities or other trading activities and that it will deliver a prospectus in connection with any resale of such Exchange Notes and (v) that it is not acting on behalf of any person that could not truthfully make the foregoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply (to the extent applicable) solely with respect to Notes held by the Placement Agents as provided in (and subject to) Section 2(b)(iii), and the Company shall have no further obligation to register Notes (other than such Notes of the Placement Agents) pursuant to Section 2(b) of this Agreement.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 10, 1998 or (iii) with respect to any Holder (other than a Participating Broker-Dealer) shall, within 30 days after consummation of Registrable Securities (A) the Exchange Offer, notify the Company in writing that such Holder (x) is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (By) such Holder may not resell the Exchange Securities Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such HolderHolder (other than, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliatesin either case, then, upon due solely to such Holder’s written request's inability to make the representations referred to in the penultimate paragraph of Section 2(a)), the Issuer Company shall use its reasonable best efforts (x) to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the applicable Holders of all of the their Registrable Securities Notes and (y) to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) with respect to the Registrable Notes (or for a period of one year in the case of a Shelf Registration effected at the request of a Placement Agent) or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement (i) have been sold pursuant to the Shelf Registration Statement or (ii) are no longer outstandingrestricted securities (as defined in Rule 144 under the 1933 Act, or any successor rule thereof). The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf any Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in and subject to the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)December 10, 1998, the annual interest rate on the Registrable Securities Notes will be increased by (a) prior to March 10, 1999, 0.25% per annum and (b) thereafter, 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadlineper annum, as applicable, in either case until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Us Office Products Co)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security of the applicable series equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by September 9, 2015 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities of any series pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement with respect to such series of Registrable Securities will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities of such series pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior with respect to a series of Registrable Securities is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement with respect to such series is not declared effective on or prior to 90 days after September 9, 2015 (and in the case of a Shelf Filing Obligation arises (which shall Registration Statement with respect to such series, thereafter ceases to be effective as provided in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”preceding sentence), the annual interest rate on the Registrable such series of Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer with respect to such series is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement with respect to such series is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC (the “Staff”), the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 an Exchange Offer Registration Statement within 210 days after the date of issuance the original issue of the Securities and (ii) 90 days after the consummation of the Merger“Issue Date”), and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall use their reasonable best efforts to cause such Exchange Offer Registration Statement to be declared effective under the 1933 Act within 360 days after the Issue Date. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and shall use its their reasonable best efforts to have complete the Exchange Offer consummated on or prior to the date that is the later of (i) 425 not less than 40 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through the common depositary for the Securities or otherwise, stating in such Prospectus or accompanying documents in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. Upon the Placement Agent’s request, the Company and the Guarantors shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors (i) will be entitled to close the Exchange Offer 30 days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered in accordance with the terms of the Exchange Offer) and (ii) will be required to consummate the Exchange Offer not later than 40 days after the date on which the Exchange Offer Registration Statement is declared effective. Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the 1933 Act, of the Company or the Guarantors or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the 1933 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 Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on within 400 days of the Closing Date, (iii) any Placement Agent shall notify the Company and the Guarantors following the consummation of the Exchange Offer Closing Deadline that the Securities held by it are not eligible to be exchanged for Exchange Securities in the Exchange Offer or (iiiiv) with respect to any Holder of Registrable Securities (Aother than an Participating Broker-Dealer) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer or, in the case of any Holder (other than an Participating Broker-Dealer) that participates in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestprospectus, the Issuer shall Company and the Guarantors shall: (1) use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany and the Guarantors, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by Securities, (2) in the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result case of the matters referred to in clause (iii) of the preceding sentenceSection 2(b)(i), the Issuer shall use its their reasonable best efforts to file and have cause the Shelf Registration Statement to be declared effective by the SEC both an Exchange Offer Registration Statement pursuant under the 1933 Act on or prior to Section 2(athe 360th day after the Issue Date, (3) with respect to all Registrable Securities and a Shelf Registration Statement in the case of Sections 2(b)(ii), (which may be a combined Registration Statement with the Exchange Offer Registration Statementiii) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to or (iv), use its their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SEC under the 1933 Act on or prior to the 90th day after the date on with the Shelf Registration Statement is required to be filed, and (4) keep the Shelf Registration Statement continuously effective for a period until the earliest of one year or such shorter period that will terminate (A) the time when all of the Registrable Securities covered by the Shelf Registration Statement have been can be sold pursuant to Rule 144 under the 1933 Act without any limitations under clauses (c), (e), (f) and (h) of Rule 144, (B) two years from the Issue Date and (C) the date on which all Registrable Securities registered thereunder are disposed of in accordance therewith. Notwithstanding the foregoing, to the extent that a Shelf Registration Statement is required to be filed pursuant to Section 2(b)(ii) and the Exchange Offer is consummated on a date that is later than 400 days after the Closing Date, upon the completion of the Exchange Offer, the Company and the Guarantors will no longer be required to make effective or continue to effectiveness of the Shelf Registration Statement Statement, except as may be required pursuant to Section 2(b)(i), (iii) or are no longer outstanding(iv). The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably and timely requested by a Holder with respect to information relating to such Holder, and to use its their reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable, provided that the Company and the Guarantors shall not be required to amend the Shelf Registration Statement to add additional Holders more than once per quarter. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In The Company and the event that Guarantors will pay additional cash interest (a“Additional Interest”) we do not consummate on the Securities,
(1) if the Company and the Guarantors fail to file an Exchange Offer Registration Statement with the SEC on or prior to the 210th day after the date hereof,
(2) if the Exchange Offer Closing Deadline Registration Statement is not declared effective by the SEC on or prior to the 360th day after the date hereof or, if obligated to file a Shelf Registration Statement, a Shelf Registration Statement is not declared effective by the SEC on or prior to the 360th day hereof,
(b3) if the Exchange Offer is not closed with respect to any of the Securities that are then tendered on or before the 40th day after the Exchange Offer Registration Statement is declared effective,
(4) if obligated to file the Shelf Registration Statement, the Company and the Guarantors fail to file the Shelf Registration Statement with the SEC on or prior to the 30th day after the date on which the obligation to file a Shelf Registration Statement arises,
(5) if obligated to file a Shelf Registration Statement pursuant to (A) Section 2(b)(2) above, the Shelf Registration Statement is not declared effective on or prior to 90 days the 360th day after the Shelf Filing Obligation arises Issue Date; and (which shall in no event be earlier than the Exchange Offer Closing DeadlineB) (the “Effectiveness Deadline”)Section 2(b)(3) above, the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is not declared effective by on or prior to 90th day after the SECdate on with the Shelf Registration Statement is required to be filed, or
(6) after the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, is declared effective, such Registration Statement thereafter ceases to be effective or usable (subject to certain exceptions) (each such event referred to in the preceding clauses (1) through (6), a “Registration Default”); from, and including, the date on which any such Registration Default shall occur to, but excluding, the date on which all Registration Defaults have been cured. The annual rate of the Additional Interest will be 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, and such rate will increase by an additional interest 0.25% per annum with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum Additional Interest rate on the Registrable Securities will not at any time exceed 0.50of 1.00% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rateper annum. The additional interest payable Company and the Guarantors will pay such Additional Interest on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for dates. Such Additional Interest will be in addition to any other interest payable from time to time with respect to the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Sensata Technologies Holland, B.V.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and Holdings shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective as promptly as practicable an Exchange Offer Registration Statement covering the offer by the Issuer Company and Holdings to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Exchange Offer Registration Statement declared effective as promptly as practicable and remain effective until the closing of the Exchange Offer. The Issuer Company and Holdings shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its their reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and Holdings shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation Date, provided, however, that, if any of the Exchange OfferRegistrable Securities are in book-entry form, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) Prospectus and accompanying documents shall also specify how such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder surrender is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its marketeffected in accordance with applicable book-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the Actentry procedures; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and Holdings shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and Holdings and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and Holdings shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and Holdings shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer determines Company and Holdings determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 31, 2001, or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed by the Placement Agents and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and Holdings shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany and Holdings, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC as promptly as practicable. In the event that the Issuer is Company and Holdings are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and Holdings shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and Holdings agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and Holdings further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and Holdings for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its their reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon thereafter as thereafter is practicable. The Issuer agrees Company and Holdings agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and Holdings shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by March 26, 2014 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after Xxxxx 00, 0000 (xxx in the case of a Shelf Filing Obligation arises (which shall Registration Statement, thereafter ceases to be effective as provided in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”preceeding sentence), the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by March 30, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed and in the opinion of counsel for the Placement Agents a Registration Statement (in addition to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate Statement) must be filed and a non-Exchange Offer Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement declared effective by the SEC and remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)August 12, 1998. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrete in value (until February 15, 2003 and thereafter will accrue interest, ) but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by August 12, 1998 or (iii) in the opinion of counsel for the Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Placement Agent in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestSecurities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agent after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared -------- ------- effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after August 12, 1998, interest (in addition to the Shelf Filing Obligation arises (which shall accrual of original issue discount during the period ending February 15, 2003 and in no event be earlier than addition to the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate otherwise due on the Registrable Securities after such date) will be increased by 0.50accrue, at an annual rate of .5% of Accreted Value on the preceding semiannual payment date, on the Securities from the Exchange Offer Closing Deadline or the Effectiveness DeadlineAugust 12, as applicable1998, payable in cash semiannually in arrears on each February 15 and August 15, commencing February 15, 1999, until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective effective; provided that, if a Shelf Registration Statement is -------- required solely by the SEC. The annual additional matters referred to in clause (iii) of the first sentence of Section 2(b), such increase in interest rate on shall be payable only to the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure Placement Agent, with respect to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled it, and only with respect to any period (from August 12, 1998) during which such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable SecuritiesShelf Registration Statement is not effective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by September 13, 2018 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement with respect to such Registrable Securities will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior with respect to Registrable Securities is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement with respect to such Registrable Securities is not declared effective on or prior to 90 days after September 13, 2018 (and in the case of a Shelf Filing Obligation arises (which shall Registration Statement with respect to such Registrable Securities, thereafter ceases to be effective as provided in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”preceding sentence), the annual interest rate on the Registrable such Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer with respect to such Registrable Securities is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement with respect to such Registrable Securities is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable their best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SECSEC or any order of any court of competent jurisdiction in the United States or Canada. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder has no arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the 1933 Act, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the 1933 Act, of the Company, (iv) such Holder is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities within the meaning of the 1933 Act, (v) if such Holder is a broker-dealer, that it will receive Exchange Securities in exchange for Securities that were acquired for its own account 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 meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities and (vi) if such Holder is a broker-dealer, it did not purchase the Securities being tendered in the Exchange Offer directly from the Company for resale pursuant to Rule 144A under the 1933 Act or any other available exemption from registration under the 1933 Act.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by September 26, 2007 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or notice of such opinion of counsel is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Company, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any United States federal or state, Canadian federal, provincial or territorial, or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)September 26, 2007, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Smurfit-Stone Container Enterprises Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by March 22, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year until two years after the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)March 22, 1998, the annual interest rate on the Registrable Securities will be increased by 0.50% from (and the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, Securities) will increase by 0.5% until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the Exchange Offer to exchange all of the Securities Registrable Certificates for Exchange Securities Certificates, to have such Exchange Offer Registration Statement declared effective and to have such Exchange Offer Registration Statement remain effective until the closing of the such Exchange Offer. The Issuer Company shall commence the such Exchange Offer promptly after the such Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the such Exchange Offer consummated on or prior to not later than 270 days after the date that Plan Effective Date (or, if the last day of such 270 day period is not a business day, the later of (ifirst business day thereafter) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company shall commence the such Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the such Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Certificates validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (such dates, the “Exchange Dates”);
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Certificate exchanged pursuant to the such Exchange Offer will be required to (a) surrender such SecurityRegistrable Certificate, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities the Registrable Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last Exchange DateDate for any such Exchange Offer, the Issuer Company shall:
(i) accept for exchange Securities the Registrable Certificates or portions thereof validly tendered and not validly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Certificates or portions thereof so accepted for exchange by the Issuer Company and, subject to Section 4.01(f) and issueSection 4.04 of the Trust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Securities Registrable Certificates surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the such Exchange Offer. The Except as set forth in Section 2(b), such Exchange Offer shall not be subject to any conditions, other than that the such Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the Holders to whom such Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of the Registrable Certificates in such Exchange Offer. If the Company effects the Exchange Offer, the Company shall be entitled to close such Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Certificates theretofore validly tendered and not withdrawn in accordance with the terms of such Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of such Exchange Offer (i) any Exchange Certificates received by such Holder will be acquired by such Holder in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any Person to participate in the distribution (within the meaning of the 0000 Xxx) of the Certificates or such Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (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 such Exchange Certificates and (v) if such Holder is a broker dealer, that it will receive such Exchange Certificates for its own account in exchange for such Certificates 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 the resale of such Exchange Certificates.
(b) (X) In the event that the Company determines (i1) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SECSEC or (2) the issuance of the Exchange Certificates would cause the Trust to be required to become registered as an investment company under the Investment Company Act of 1940, as amended, (Y) in the event that the Company determines that the “Exchange Offer Registration” (as defined in the Class A Registration Rights Agreement) provided for in Section 2(a) of the Class A Registration Rights Agreement is not available to Class A Certificates or if such “Exchange Offer Registration” is not consummated for any reason and a “Shelf Registration Statement” (as defined in the Class A Registration Rights Agreement) is filed with respect to Class A Certificates, or (Z) in the event that the Company determines that the “Exchange Offer Registration” (as defined in the Second 2013-2 Registration Rights Agreement) provided for in Section 2(a) of the Second 2013-2 Registration Rights Agreement is not available to Class B Certificates or if such “Exchange Offer Registration” is not consummated for any reason and a “Shelf Registration Statement” (as defined in the Class B Registration Rights Agreement) is filed with respect to Class B Certificates, then the Company (in the case of clause (X)) shall, and (in the case of clause (Y) or (Z)) shall have the option to, in lieu of effecting the registration of the Exchange Certificates pursuant to an Exchange Offer Registration Statement and at no cost to the holders of the Registrable Certificates, (i) as promptly as practicable, file with the SEC a shelf registration statement covering resales of the Registrable Certificates (each, a “Shelf Registration Statement”), (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause such Shelf Registration Statement to be filed as soon as practicable declared or otherwise become effective under the Securities Act by the 90th day after the Exchange Deadline (or, if such determination90th day is not a business day, date or notice is given to the Issuer, as the case may be first business day thereafter) (the “Shelf Filing ObligationRegistration Deadline”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities ) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the effective such Shelf Registration Statement continuously effective for a period of one year after its effective date (or for such shorter period that will terminate as shall end when all of the Registrable Securities Certificates covered by the such Shelf Registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration Statement or are no longer outstandingSecurities Act). The Issuer Company further agrees to supplement or amend the any such Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the any registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities Certificates pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the Pass Through Trust Agreement, if neither such Exchange Offer is consummated nor such Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Shelf Registration Deadline, the interest rate on the Certificates will be increased by 0.50% per annum effective as of the first day after the Shelf Registration Deadline but only until such Exchange Offer is consummated or such Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If such Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve-month period, during the period that such Shelf Registration Statement is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Certificates shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as such Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, such Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of the Registrable Securities Certificates pursuant to a such Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court;
(B) the occurrence of any event or the existence of any fact, as a result of which such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not declared effective on misleading, with respect to which notice has been given by the Company pursuant to Section 3(i); or
(C) the occurrence or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completedexistence of any pending corporate development that, in the case discretion of an Exchange Offerthe Company, or makes it appropriate to suspend the availability of such Shelf Registration Statement is declared effective with respect to which notice has been given by the SEC. Company pursuant to Section 3(e).
(e) The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such maximum possible increase in the interest rate. The additional interest payable rate per annum on the Registrable Securities described in this clause (dCertificates pursuant to Section 2(d) hereof, at any time, shall be payable on the regular interest payment dates for the Registrable Securities0.50%.
(ef) Without limiting the remedies available to the Initial Purchasers and the applicable Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the such Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any such Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
(g) Each Holder of Certificates agrees that, for so long as Certificates remain outstanding, such Holder may offer, sell or otherwise transfer Certificates only to qualified institutional buyers in compliance with, and within the meaning of, Rule 144A of the rules and regulations promulgated under the 1933 Act. In addition, each Holder of Certificates or Exchange Certificates issued with respect to Certificates, as the case may be, agrees that, for so long as such Certificates remain outstanding, including after the consummation of an Exchange Offer Registration as provided in Section 2(a) above or a Shelf Registration as provided in Section 2(b) above, such Certificates shall bear the restrictive legends set forth in Section 4.02 or 4.03, as applicable, of the Trust Supplement.
Appears in 1 contract
Samples: Registration Rights Agreement (American Airlines Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by January 3, 2008 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)January 3, 2008, the annual interest rate on the Registrable Securities will be increased by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Holdings shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Holdings to the Holders to exchange all of the Securities Registrable Shares for Exchange Securities and Shares, to have such Registration Statement declared effective by the SEC and remain effective until the closing of the Exchange OfferOffer and to consummate the Exchange Offer on or prior to September 11, 1997. The Issuer Holdings shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)September 11, 1997. The Issuer Holdings shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Shares validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Shares not tendered will remain outstanding and continue shall accumulate dividends at the initial rate borne by the Registrable Shares and, other than Registrable Shares referred to accrue interestin Section 2(b)(iii) below, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Shares exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Shares, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their its election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Shares delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Shares exchanged. As soon as practicable after the last Exchange Date, the Issuer Holdings shall:
(i) accept for exchange Securities Registrable Shares or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee Transfer Agent for cancellation all Securities Registrable Shares or portions thereof so accepted for exchange by the Issuer Holdings and issue, and cause the Trustee Transfer Agent to promptly authenticate and mail to each Holder, an Exchange Security Share equal in principal amount to the principal amount of the Securities Registrable Shares surrendered by such Holder. The Issuer Holdings shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. Holdings shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Shares in the Exchange Offer.
(b) In the event that (i) the Issuer Holdings determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline or prior to September 11, 1997 or (iii) in the opinion of counsel for the Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Placement Agent in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange OfferShares, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Holdings shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Holdings, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Shares and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Holdings is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Holdings shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Shares and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Shares held by the Holders Placement Agent after completion of the Exchange Offer. The Issuer Holdings agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities Shares covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Holdings further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Holdings for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer Holdings agrees to furnish to the Holders of Registrable Securities Shares copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Holdings shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Shares pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, -------- ------- the offering of Registrable Securities Shares pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Shares pursuant to such Registration Statement may legally resume. In As provided for in the Amended Articles, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after September 11, 1997, dividends will accrue, at an annual rate of 0.5% of the liquidation preference thereof, on the Shares from September 11, 1997, payable in additional Shares quarterly in arrears on each March 15, June 15, September 15 and December 15, commencing December 15, 1997; provided that if a Shelf Filing Obligation arises Registration -------- Statement is required solely as a result of the matters referred to in clause (which shall in no event be earlier than iii) of the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”first sentence of Section 2(b), such increase in dividends shall be payable only to the annual interest rate on the Registrable Securities will be increased Placement Agent, with respect to Shares held by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadlineit, as applicableand only with respect to any period (after September 11, until the Exchange Offer is completed, in the case of an Exchange Offer, or the 1997) during which such Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Issuer Holdings acknowledges that any failure by the Issuer Holdings to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Holdings' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Icg Communications Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts (i) to cause to be filed by the date that is the later of (i) 365 within 60 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective Closing Date an Exchange Offer Registration Statement covering the offer by the Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, (ii) to cause the Exchange Offer Registration Statement to be declared effective by the SEC within 150 days of the Closing Date, and (iii) to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to not later than 180 days after the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company shall, or shall cause the Trustee to, commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be each business day during a period of at least 20 business 30 days from the date such notice is mailedmailed (or longer if required by applicable law)) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer shallCompany shall or shall cause the Trustee to:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company, and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. ; The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws laws, rules and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) any holder of a Security notifies the Exchange Offer is not consummated Company on or prior to the Exchange Offer 45th day following the Closing Deadline or (iii) with respect to any Holder of Registrable Securities Date that (A) such Holder is prohibited by applicable due to a change in law or SEC policy from participating it is not entitled to participate in the Exchange Offer, or (B) such Holder due to a change in law or policy it may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, holder or (C) such Holder is a Broker-Dealer and it owns Securities (including any Placement Agent that holds Securities as part of an unsold allotment from the original offering of the Securities) acquired directly from the Issuer Company or one an Affiliate of its affiliatesthe Company, then(iii) the holders of not less than a majority in aggregate principal amount of the Securities reasonably determine that the interests of the holders would be materially adversely affected by consummation of the Exchange Offer, upon such Holder’s written request(iv) the Exchange Offer is not for any other reason consummated within 180 days of the Closing Date or (v) the Exchange Offer has been completed and in the opinion of counsel for the Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or sale of Registrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Securities, and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that neither the consummation of the Exchange Offer nor the declaration by the Commission of a Shelf Registration to be effective (aeach a "Registration Event") we do occurs, then the interest rate on the Securities (the "Additional Interest") will increase as follows:
(i) if the Exchange Offer Registration Statement or Shelf Registration Statement is not consummate filed within 60 days following the Closing Date, Additional Interest shall accrue on the Securities over and above the stated interest at a rate of 0.50% per annum for the first 90 days, commencing on the 61st day after the Closing Date, such additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period;
(ii) if the Exchange Offer Registration Statement or Shelf Registration Statement is not declared effective within 150 days following the Closing Date, then, commencing on the 151st day after the Closing Date, Additional Interest shall accrue on the Securities over and above the stated interest at a rate of 0.50% per annum for the first 90 days immediately following the 90th day after the Closing Date, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; or
(iii) if (A) the Company has not exchanged all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to 180 days after the Closing Date or (B) the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared ceases to be effective on or at any time prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until time that the Exchange Offer is completedconsummated or (C) if applicable, the Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective at any time prior to the second anniversary of the Closing Date (unless all the Securities have been sold thereunder), then Additional Interest shall accrue on the Securities over and above the stated interest at a rate of 0.50% per annum for the first 90 days commencing on (x) the 181st day after the Closing Date with respect to the Securities validly tendered and not exchanged by the Company, in the case of an Exchange Offer(A) above, or (y) the day the Exchange Offer Registration Statement ceases to be effective or usable for its intended purpose in the case of (B) above, or (z) the day such Shelf Registration Statement ceases to be effective in the case of (C) above, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; provided, however, that the Additional Interest rate on the Securities may not exceed in the aggregate 1.0% per annum; and provided, further, that (1) upon the filing of the Exchange Offer Registration Statement or Shelf Registration Statement (in the case of clause (i) above), (2) upon the effectiveness of the Exchange Offer Registration or Shelf Registration Statement (in the case of clause (ii) above), or (3) upon the exchange of Exchange Securities for all Securities tendered (in the case of clause (iii)(A) above), or upon the effectiveness of the Exchange Registration Statement which had ceased to remain effective (in the case of clause (iii)(B) above), or upon the effectiveness of the Shelf Registration Statement is declared which had ceased to remain effective (in the case of clause (iii)(C) above), Additional Interest on the Securities as a result of such clause (or the relevant subclause thereof, as the case may be) shall cease to accrue and the interest rate shall revert to the original rate.
(e) The Company shall notify the Trustee and paying agent under the Indenture (or the trustee and paying agent under such other indenture under which any Transfer Restricted Notes are issued) within one Business Day upon the happening of each and every Registration Event. The Company shall pay the Additional Interest due on the Securities by depositing with the paying agent (which shall not be the Company for these purposes) for the Securities, in trust, for the benefit of the holders thereof, prior to 11:00 A.M. on the next interest payment date specified by the SECIndenture (or such other indentures), sums sufficient to pay the Additional Interest then due. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) Additional Interest due shall be payable on the regular each interest payment dates for date specified by the Registrable SecuritiesIndenture (or such other indenture) to the record holders entitled to receive the interest payment to be made on such date. Each obligation to pay Additional Interest shall be deemed to accrue from, and including, the applicable Registration Event. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the affected Transfer Restricted Notes of such holders, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360.
(ef) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers each Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its reasonable their best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, to cause such Exchange Offer Registration Statement to become effective under the 1933 Act, and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its their reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail deliver to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company (i) that any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) that, at the time of the commencement of the Exchange Offer, such Holder 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) that such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or, if it is an affiliate, that 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 Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to deliver a prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by January 26, 2002 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its reasonable their best efforts to cause to be filed as soon as reasonably practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its reasonable their best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the earlier of one year the second anniversary of the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (including, without limitation, if required by law or are no longer outstandingthe existing interpretations of the staff of the SEC, by filing and causing to become effective a new applicable Registration Statement). The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (ai) we do not consummate the Exchange Offer on Registration Statement or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises January 26, 2002, (which shall in no event be earlier than ii) the Exchange Offer Closing Deadlineis not consummated on or prior to February 26, 2002, or (iii) the Shelf Registration Statement has become effective and thereafter is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court (other than interference in respect of such Shelf Registration Statement resulting from a requirement of the SEC that a new applicable Registration Statement be filed as a result of the addition of Guarantors subsequent to the effectiveness of such Shelf Registration Statement, but only to the extent that the period of any resulting suspension of the use of such Shelf Registration Statement pursuant to the penultimate paragraph of Section 3 hereof, taken together with all other such suspensions during any 365 day period, does not exceed the limitations expressed in the last sentence thereof) (the “Effectiveness Deadline”each such event referred to in clauses (i) through (iii) above a "Registration Default"), the annual interest rate on the Registrable Securities will be increased by 0.500.5% per annum from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, date such Registration Default occurs until the Exchange Offer is completed, in earlier of (i) the case date that all Registration Defaults have been cured and (ii) all of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure cease to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's or the Guarantor's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantor shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities not later than 120 days after the Closing Date and to have such Registration Statement declared effective not later than 180 days after the Closing Date and remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its their reasonable best efforts to have complete the Exchange Offer consummated on or prior to not later than 210 days after the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company and the Guarantor shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and the Guarantor shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantor shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. To the extent relevant, the Company and the Guarantor shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer determines Company or the Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by 210 days after the Exchange Offer Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantor shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantor shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantor agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will ill terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantor further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its their reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantor agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer shall Company and the Guarantor, jointly and severally, agree to pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 210 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)Date, the annual interest rate on the Registrable Securities will be increased by 0.500.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantor acknowledge that any failure by the Issuer Company or the Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's and the Guarantor's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (May Department Stores Co)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and shall use its best efforts to have such Registration Statement declared effective by the SEC and remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn in accordance with the terms of the Exchange Offer will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security Securities not tendered will remain outstanding and continue to accrue interestinterest at the initial rate borne by the Registrable Securities and, but other than Registrable Securities referred to in Section 2(b)(iii) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security any Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable Promptly after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall, subject to applicable law, inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer date that is 360 days after the Closing Deadline Date, or (iii) in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Initial Purchasers of Registrable Securities that are acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly Initial Purchaser from the Issuer or one of its affiliates, then, upon such Holder’s written requestCompany, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the first anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 the date that is 360 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)Date, the annual interest rate on the Registrable Securities will be increased as liquidated damages by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, 0.5 per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(qSEC (such increased interest, “Special Interest”), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Silgan Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Issuer Company and each Guarantor shall use its reasonable best efforts to (1) cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement within 90 days following the Closing Date covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) use their reasonable best efforts to cause such Exchange Offer Registration Statement to become effective within 210 days following the Closing Date. The Company and each Guarantor shall use their reasonable best efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)than 30 Business Days after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the “Exchange Dates”"EXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(iA) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If, during the period the Exchange Offer Registration Statement is effective, an event occurs which makes any statement made in such Exchange Offer Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Exchange Offer Registration Statement in order to make the statements therein not misleading or in such Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company and the Guarantors shall use their reasonable best efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend the exchange of the Registrable Securities as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend such exchange until the Company and the Guarantors have amended or supplemented the Prospectus to correct such misstatement or omission.
(b) In the event that If (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on within 260 days following the Exchange Offer Closing Deadline Date or (iii) with respect to in the written opinion of counsel for the Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by any Holder in connection with any reoffering or resale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestSecurities, the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed as soon as practicable after (x) file with the SEC within 75 days following such determination, date or notice of such opinion of counsel is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Company, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and (y) use their reasonable best efforts to have cause such Shelf Registration Statement declared to become effective by within 60 days of the SECfiling of such Shelf Registration Statement. In If the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Holders after completion of who must deliver the Exchange Offerrelated Prospectus. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period referred to in Rule 144(k) of one year the 1933 Act with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingcease to be Registrable Securities within the meaning of this Agreement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.
(e) The Company, each Guarantor and the Initial Purchasers agree that the Holders will suffer damages if the Company or the Guarantors fail to fulfill their respective obligations under Section 2(a) or Section 2(b) hereof and that it would not be feasible to ascertain the extent of such damages with precision. In Accordingly, the event Company and each Guarantor agrees that if:
(ai) we do not consummate the Exchange Offer Registration Statement is not filed with the SEC on or prior to the 90th day following the Closing Date,
(ii) the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises 210th day following the Closing Date,
(which shall in no event be earlier than the Exchange Offer Closing Deadlineiii) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completednot completed on or prior to the 260th day following the Closing Date, in the case of an Exchange Offer, or or
(iv) the Shelf Registration Statement is required to be filed but is not filed or declared effective by within the SEC. The annual additional interest rate on time period set forth herein or is declared effective but thereafter ceases to be effective or usable prior to the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities will not at any time exceed 0.50% notwithstanding other than after the Issuer’s Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, without being succeeded within two Business Days by a post-effective amendment which cures the failure and that is itself immediately declared effective, (each such event referred to meet more than one of these requirements. If in clauses (i) through (iv) a "REGISTRATION DEFAULT"), then the Issuer requests Holders Company and the Guarantor hereby agree to pay each Holder of Registrable Securities to provide affected thereby, liquidated damages ("LIQUIDATED DAMAGES"). Liquidated Damages will accrue on the information affected Registrable Securities and the affected Exchange Securities, as described in Section 3(q), applicable. The rate of Liquidated Damages will be 0.25% per annum of the principal amount of Registrable Securities held by such Holder for the first 90-day period immediately following the occurrence of a Registration Default, increasing by 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, from and including the date on which any such Registration Default shall occur to, but excluding, the earlier of (1) the date on which all Registration Defaults have been cured or (2) the date on which all the Registrable Securities and Exchange Securities otherwise become freely transferable by Holders other than affiliates of the Securities without further registration under the 1933 Act. Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable shall not increase because more than one Registration Default has occurred and is pending and (2) a Holder of Registrable Securities or Exchange Securities who do is not deliver such information entitled to the Issuer when so requested will benefits of the Shelf Registration Statement (i.e., such Holder has not elected to including information) shall not be entitled to any such increase in Liquidated Damages with respect to a Registration Default that pertains to the interest rateShelf Registration Statement. The additional obligations to pay Liquidated Damages under this Agreement shall be joint and several obligations of the Company and each Guarantor.
(f) The Company shall notify the Trustee within one Business Day after each date on which an event occurs in respect of which Liquidated Damages are required to be paid. Any amounts of Liquidated Damages due pursuant to this Section 2 will be payable in addition to any other interest payable on from time to time with respect to the Registrable Securities described in this clause (d) shall be payable cash semi-annually on the regular interest payment dates for specified in the Registrable SecuritiesIndenture (to the holders of record as specified in the Indenture), commencing with the first such interest payment date occurring after any such Liquidated Damages commence to accrue. The amount of Liquidated Damages will be determined in a manner consistent with the calculation of interest under the Indenture.
(eg) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or a Guarantor to comply with its their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations and the Guarantors' under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (El Paso Production Co)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 filed, within 150 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the MergerClosing Date, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, to have the Exchange Offer Registration Statement declared effective within 180 days of the Closing Date and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have consummate the Exchange Offer consummated on or prior to the date that is the later of (i) 425 within 210 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters applicable letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC.
(b) In the event that (i) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC and (ii) there is no injunction, order or decree issued by any court or any governmental agency that would prohibit, prevent or otherwise materially impair the ability of the Company to proceed with the Exchange Offer. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is not consummated on made, and the Exchange Offer Closing Deadline or (iii) with respect Initial Purchasers shall have the right, subject to any Holder applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell . For a period of 90 days after the Exchange Securities acquired by it in Date, the Exchange Offer Company shall also use its reasonable best efforts to the public without delivering make available a prospectus and that meeting the requirements of the 1933 Act which may be the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, Prospectus contained in a Shelf Registration Statement providing Statement, as such Registration Statements may be amended or supplemented from time to time, to holders which are broker-dealers (and which identify themselves as such) in connection with resales of Exchange Securities received in exchange for the sale by the Holders of all of the Registrable Securities, where such Registrable Securities and to have were acquired by such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely broker-dealers as a result of market-making or other trading activities; PROVIDED that each holder which is a broker-dealer agrees that, upon receipt of notice from the matters referred to in clause (iii) Company of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding. The Issuer further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees to furnish to the Holders of Registrable Securities copies occurrence of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by event which makes any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.statement in
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts (1) to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement within 120 days following the Closing Date covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for an equal aggregate principal amount of Exchange Securities and (2) to cause such Exchange Offer Registration Statement to become effective within 180 days following the Closing Date. The Company shall use its reasonable best efforts to have such the Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter (to be received no later than the Exchange Date) setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform WDR (on behalf of the Initial Purchasers) of the names and addresses of the Holders to whom the Exchange Offer is made, and WDR (on behalf of the Initial Purchasers) shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that If:
(i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, ,
(ii) the Exchange Offer is not for any other reason consummated on within 240 days following the Closing Date or
(iii) the Exchange Offer Closing Deadline or (iii) with respect to has been completed and in the written opinion of counsel for the Holders a Shelf Registration Statement must be filed and a Prospectus must be delivered by any Holder in connection with any reoffering or resale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestSecurities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after (x) file with the SEC within 120 days of such determination, date or notice is of such opinion of counsel being given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale resale by the Holders (other than those who fail to comply with the paragraph immediately following clause (p) of Section 3) of all of the their Registrable Securities and to (y) have such Shelf Registration Statement declared effective by the SECSEC within 180 days of such determination, date or notice of such opinion of counsel being given to the Company, as the case may be. In If the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers reoffers and sales resales of Registrable Securities held by the Holders after completion of who must deliver the Exchange Offerrelated Prospectus. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingcease to be Registrable Securities within the meaning of this Agreement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared -------- ------- effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the event that Securities, if:
(ai) we do not consummate the Exchange Offer Registration Statement and, if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not filed with the SEC on or prior to the date specified for such filing in Section 2(a) and Section 2(b), respectively,
(ii) the Exchange Offer Closing Deadline or (b) Registration Statement and, if a Shelf Registration Statement is required hereby, the Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises date specified for such effectiveness in Section 2(a) and Section 2(b), respectively,
(which shall in no event be earlier than iii) the Exchange Offer Closing Deadline) (is not consummated on or prior to the “Effectiveness Deadline”date specified in Section 2(a), or
(iv) the annual Company has filed, and the SEC has declared effective, the Shelf Registration Statement and at any time prior to the expiration of the period referred to in Rule 144(k) with respect to the Registrable Securities, other than after all the Registrable Securities have been disposed of under the Shelf Registration Statement or cease to be Registrable Securities, the Shelf Registration Statement ceases to be effective, or fails to be usable for its intended purpose without being succeeded within two business days by a post-effective amendment which cures the failure and that is itself immediately declared effective, then in the case of any failure set forth in (i) - (iv) above, the per annum interest rate on the Registrable Securities will be increased increase by 0.500.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer date that the relevant failure is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitiesremedied.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Heller Financial Inc)
Registration Under the 1933 Act. (a) To If any Registrable Securities are outstanding as of the 366th calendar day following the Closing Date, then to the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their commercially reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after prepare and file with the date of issuance of the Securities and (ii) 90 days after the consummation of the MergerSEC, and cause to become effective an Exchange Offer Registration Statement covering on an appropriate form under the offer by 1933 Act with respect to a proposed Exchange Offer and the Issuer issuance and delivery to the Holders to Holders, in exchange all for such Registrable Securities, of the Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer shall commence the Exchange Offer promptly after Securities, (ii) cause the Exchange Offer Registration Statement has been to become or be declared effective by under the SEC1933 Act, and use its reasonable best efforts to have (iii) cause the Exchange Offer to be consummated on or prior to the date that is the later of (i) 425 days 451st calendar day following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegramfacsimile transmission, telex, facsimile transmission electronic mail or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder Xxxxxx is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and the Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In If any Registrable Securities are outstanding as of the event that 366th calendar date after the Closing Date and (i) the Issuer determines that the Exchange Offer Registration provided for if, because of any changes in Section 2(a) above is not available law, SEC rules or that the Exchange Offer may not be consummated regulations or applicable interpretations thereof by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, neither the Company nor the Guarantors are permitted to effect the Exchange Offer as contemplated by Section 2(a) above, (ii) for any other reason the Exchange Offer is not consummated on within 451 calendar days of the Exchange Offer Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors will, at their cost, as promptly as reasonably practicable, and in any event on or prior to the public without delivering a prospectus and that 30th calendar day after such obligation arises, but in no event earlier than the Prospectus contained in 451st calendar day after the Exchange Offer Registration Statement is not appropriate or available for such resales by such HolderClosing Date, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC on or prior to the 40th calendar day after such filing. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiib) of the preceding sentence, the Issuer Company and the Guarantors shall use its their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year until two years after the Closing Date with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer Freely Transferable or cease to be outstanding. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the any registration required pursuant to Section 2(a) or and Section 2(b)) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the any Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that any Registrable Securities are outstanding as of the 366th calendar day after the Closing Date and either (ai) we do not consummate the Exchange Offer is not consummated on or prior to the Exchange Offer 451st calendar day following the Closing Deadline or Date, (bii) a Shelf Registration Statement applicable to such Registrable Securities, if required pursuant to Section 2(b), is not filed or declared effective on when required pursuant to Section 2(b) or prior (iii) a Shelf Registration Statement applicable to 90 such Registrable Securities, if required pursuant to Section 2(b), is declared effective as required but thereafter fails to remain effective or usable in connection with resales for more than 60 calendar days after in the Shelf Filing Obligation arises aggregate in any twelve month period (which shall each such event referred to in no event be earlier than the Exchange Offer Closing Deadlineclauses (i) through (the iii) above, a “Effectiveness DeadlineRegistration Default”), the annual additional interest rate (“Additional Interest”), payable in cash, will accrue on the such Registrable Securities will at a rate of 0.25% per annum for the first 90- day period immediately following the occurrence of a Registration Default, with such Additional Interest to be increased by 0.50an additional 0.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadlineper annum with respect to each subsequent 90-day period, as applicableup to a maximum Additional Interest rate of 1.00% per annum, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to provided that any such increase in Additional Interest shall cease to accrue on any Registrable Security upon the interest rate. The additional interest payable earlier of (A) the date on which all Registration Defaults with respect to such Registrable Security have been cured or (B) the date on which such Registrable Securities described in this clause (d) shall Security ceases to be payable on the regular interest payment dates for the a Registrable SecuritiesSecurity.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Seagate Technology Holdings PLC)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his or her election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note of the same series equal in principal amount and of like terms to the principal amount of the Securities Registrable Notes surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer date that is six months after the Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales sale of Registrable Notes by such HolderInitial Purchasers, or (C) such Holder is a Broker-Dealer and holds Securities of Registrable Notes that were acquired directly by the Initial Purchasers from the Issuer or one of its affiliates, then, upon such Holder’s written requestCompany, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Notes covered by the Shelf Registration Statement, or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingas would be permitted by the current rules and regulations. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other applicable rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC unless such action by the SEC is no longer required; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and, if a Shelf Registration Statement is required hereby, the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared or permitted to go effective on or prior to 90 days the date that is six months after the Shelf Filing Obligation arises Closing Date, (which shall in no event be earlier than the Exchange Offer Closing Deadlinei) (the “Effectiveness Deadline”), the annual interest rate on borne by the Registrable Securities Notes will be increased increase by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicableper annum, until the date the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the a Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 10, 1997 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to all Registrable Securities covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)December 10, 1997, the annual interest rate on the Registrable Securities will be increased by 0.50% from (and the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, Securities) will increase by an additional .5% per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, Lodgian Financing and the Issuer Guarantors shall use its reasonable their best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by Lodgian Financing and the Issuer Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Lodgian Financing and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable their best efforts to have the Exchange Offer consummated on or prior to not later than 60 days after such effective date. Lodgian Financing and the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from and including the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged; provided that withdrawal rights may be revoked in connection with any extension of the Exchange Offer. As soon as practicable after the last Exchange Date, Lodgian Financing and the Issuer Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by Lodgian Financing and the Issuer Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Lodgian Financing and the Guarantors shall use its reasonable their best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. Lodgian Financing and the Guarantors shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) Lodgian Financing and the Issuer determines Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by April 23, 2000 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holdersale of Registrable Securities, or (C) such Holder is a Broker-Dealer Lodgian Financing and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Guarantors shall use its reasonable their best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, Lodgian a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event Lodgian Financing and the Issuer is Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, Lodgian Financing and the Issuer Guarantors shall use its reasonable their best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer agrees Lodgian Financing and the Guarantors agree to use its reasonable their best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Lodgian Financing and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by Lodgian Financing and the Issuer Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Lodgian Financing and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Lodgian Financing and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Shelf Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective (i) on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)January 23, 2000, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from per annum and (ii) on or prior to April 23, 1999, the Exchange Offer Closing Deadline or interest rate on the Effectiveness Deadline, as applicable, until Securities will be increased by an additional 0.5% per annum. Once the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The , the annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information shall be changed again to the Issuer when so requested will not be entitled to any such increase original interest rate shown in the interest rate. The additional interest payable on the Registrable Securities described in second paragraph of this clause (d) shall be payable on the regular interest payment dates for the Registrable SecuritiesAgreement.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, Lodgian Financing and the Issuer acknowledges Guarantors acknowledge that any failure by Lodgian Financing or any of the Issuer Guarantors to comply with its respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce Lodgian Financing's and the Issuer’s Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Servico Market Center Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, each of the Issuer Guarantor and the Obligors shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Guarantor and the Obligors to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Guarantor and the Obligors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable their best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Guarantor and the Obligors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");; ---------------
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrete in value until April 15, 2003 and thereafter will accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittaltransmittal enclosed with the Exchange Offer Prospectus, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount at maturity of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As a condition to its participation in the Exchange Offer, each Holder of Registrable Notes (including, without limitation, any Holder who is a Participating Broker- Dealer) shall furnish, upon the request of the Companies, prior to the consummation of the Exchange Offer, a written representation to the Companies (which may be contained in the letter of transmittal enclosed with the Exchange Offer Prospectus) to the effect that (A) it is not an Affiliate of the Companies and (B) it is not engaged in and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes to be issues in the Exchange Offer and (C) it is acquiring the Exchange Notes in the ordinary course of business. As soon as practicable after the last Exchange Date, the Issuer Guarantor and the Obligors shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Guarantor and the Obligors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in accreted value and principal amount at maturity to the accreted value and principal amount at maturity of the Securities Registrable Notes surrendered by such Holder. The Issuer Each of the Guarantor and the Obligors shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than customary procedural conditions set forth in the Exchange Offer Prospectus and that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Guarantor and the Obligors shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer determines Guarantor and the Obligors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by October 9, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agent a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agent in connection with any offering or available for such resales by such Holdersale of Registrable Notes, or (C) such Holder is a Broker-Dealer each of the Guarantor and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Obligors shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerGuarantor and the Obligors, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Guarantor and the Obligors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, each of the Issuer Guarantor and the Obligors shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Holders Placement Agent after completion of the Exchange Offer. The Issuer Each of the Guarantor and the Obligors agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the Securities Act after the Closing Date with respect to all Registrable Notes covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Each of the Guarantor and the Obligors further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Guarantor and the Obligors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Each of the Guarantor and the Obligors agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Guarantor and the Obligors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the -------- ------- offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)October 9, the annual 1998, interest rate on the Registrable Securities Notes (in addition to the accrual of original issue discount during the period ending April 15, 2003 and in addition to interest otherwise due on the Notes after such date) will accrue from October 9, 1998 at a rate of 0.5% per annum of the accreted value of the Notes on the preceding semi-annual accrual date and be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadlinepayable in cash semi-annually commencing April 15, as applicable, 1999 until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, each of the Issuer Guarantor and the Obligors acknowledges that any failure by the Issuer Guarantor and the Obligors to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Guarantor's and the Obligors' obligations under Section 2(a) and Section 2(b) hereof.
(f) No Holder of Registrable Notes may include any of its Registrable Notes in any Shelf Registration pursuant to this Agreement unless and until such Holder furnishes to the Companies in writing, within 20 days after receipt of a request therefor, such information as the Companies reasonably request, including the information specified in Item 507 or 508 of Regulation S-K, as applicable, for use in connection with any Shelf Registration or Prospectus or preliminary prospectus included therein. No Holder of Registrable Notes shall be entitled to the additional interest provided for in Section 2(d) that would otherwise accrue or be payable during the period of time commencing with the end of the 20 day period and ending on the date the requested information is provided to the Companies.
Appears in 1 contract
Samples: Registration Rights Agreement (Renaissance Media Capital Corp)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by December 11, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)December 11, 1998, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Buckeye Technologies Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to prepare and cause to be filed by with the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective SEC an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and shall use its reasonable best efforts to have cause such Registration Statement to be declared effective under the 1933 Act by the SEC and to cause such Registration Statement to remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to shall have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 140 days following the date of the original issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Securities. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, Date (but in any event no later than 140 days following the Issuer date of the original issuance of the Securities) the Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer shall use its reasonable best efforts to complete the Exchange Offer as provided above and Company shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, or (ii) the Exchange Offer is not consummated on has been completed and in the Exchange Offer Closing Deadline opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one constituting any portion of its affiliates, then, upon such Holder’s written requestan unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date determination or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to use its reasonable best efforts to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiiii) of the preceding sentence, the Issuer Company shall file and use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on is not consummated or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 the day that is 140 days after following the Shelf Filing Obligation arises (which shall in no event be earlier than date of the Exchange Offer Closing Deadline) (original issuance of the “Effectiveness Deadline”)Securities, the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual SEC (such additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)interest, the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities"Special Interest").
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by June 13, 1999 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchaser a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchaser in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchaser after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b), except that, in the case of a registration pursuant to Section 2(b)(iii), the Initial Purchaser shall pay any SEC filing fees. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the event that Indenture, if (ai) we do not consummate the Company fails to file the Exchange Offer Registration Statement required by this Agreement on or before the date specified for such filing, (ii) either the Shelf Registration Statement or the Exchange Offer Registration Statements is not declared effective by the Commission on or prior to the Exchange Offer Closing Deadline date specified for such effectiveness (the "Effectiveness Target Date"), or (biii) a the Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing DeadlineRegistration Statement is declared effective but thereafter ceases to be effective or usable in connection with resales of the Notes during the periods specified in this Agreement (each such event referred to in clauses (i) through (the “Effectiveness Deadline”iii) above a "Registration Default"), the annual interest rate on the Registrable Securities will be increased by 0.50.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completedRegistration Statement or Shelf Registration Statement, in as the case of an Exchange Offermay be, or the Shelf Registration Statement is declared effective by the SEC. The annual Additional interest will cease to accrue from the date of such filing or effectiveness, as the case may be; provided, however, that, if after the date such additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure ceases to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described accrue, a different event specified in Section 3(qclause (i), the Registrable Securities held by Holders who do not deliver such information (ii) or (iii) above occurs, additional interest may again commence accruing pursuant to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitiesforegoing provisions.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by April 18, 2009 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the one-year period of one year referred to in Rule 144 applicable to securities held by non-affiliates under the Securities Act or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)April 18, 2009, the annual interest rate on the Registrable Securities will be increased by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to use its best efforts to have such Registration Statement declared effective by the SEC and remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)December 9, 1997. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Securities not tendered will remain outstanding and continue shall accrue interest at the initial rate borne by the Registrable Securities and, other than Registrable Securities referred to accrue interestin Section 2(b)(iii) below, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their its election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee promptly to promptly authenticate authenticate, and mail to each Holder, an Exchange Security equal in with an aggregate principal amount equal to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agent of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agent shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline or prior to December 9, 1997 or (iii) in the opinion of counsel for the Placement Agent a Registration Statement must be filed and a Prospectus must be delivered by the Placement Agent in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestSecurities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Company, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agent after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared -------- ------- effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective by the SEC on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)December 9, 1997, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum to 9.5% per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agent and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agent or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agent or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Silgan Holdings Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice Prospectus is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Securities not tendered will remain outstanding and shall continue to accrue interestinterest at the initial rate borne by the Registrable Securities and, but other than Registrable Securities referred to in Section 2(b) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate countersign and register and mail to each Holder, Exchange Securities with an Exchange Security equal in aggregate principal amount equal to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer Company shall not be subject inform the Initial Purchasers of the names and addresses of the Holders to any conditions, other than that whom the Exchange Offer does not violate is made, and the Initial Purchasers shall have the right, subject to applicable law or any applicable interpretation law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Staff of the SECExchange Offer.
(b) In the event that (i) the Issuer determines that the Exchange Offer has been completed and, in the opinion of counsel for the Initial Purchasers, a Registration provided for Statement must be filed and a Prospectus must be delivered by any Initial Purchaser in Section 2(a) above is not available connection with any offering or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired held by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestconstitute an unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after the rendering of such determinationopinion and the delivery thereof, date or notice if written, is given to the Issuer, as the case may be (the “Shelf Filing Obligation”Company, a Shelf Registration Statement providing for the sale by the Holders Initial Purchasers of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result The Initial Purchasers shall sell out their unsold allotments before making sales of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable any other Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales Initial Purchasers shall notify the Company upon the sale of Registrable Securities held by the Holders after completion all of the Exchange Offertheir unsold allotments. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on is not consummated, or prior to the Exchange Offer Closing Deadline or (b) if required a Shelf Registration Statement is not declared effective effective, on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)June 15, 2000, the annual interest rate on borne by the Registrable Securities will shall be increased by 0.500.5% per annum on the affected Securities from the Exchange Offer Closing Deadline or the Effectiveness DeadlineJune 15, as applicable2000, until and, if the Exchange Offer is completednot consummated on or prior to September 15, 2000, thereafter the annual interest rate borne by the affected Securities shall be increased by an additional rate of 0.5% per annum on such Securities from September 15, 2000, in each case until the case earliest of an the date upon which (i) the Exchange OfferOffer is consummated, or the (ii) a Shelf Registration Statement with respect to all Registrable Securities is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure or (iii) solely with respect to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information other than the Initial Purchasers, the expiration of the holding period applicable to Notes held by non-affiliates of Nextel under Rule 144(k) under the Issuer when so requested will not be entitled to Securities Act; at which time, in any such increase in case, upon the interest rate. The additional interest payable on request of any Holder of such Securities, the Registrable Company will deliver to such Holder certificates evidencing such Holder's Securities described in this clause (d) shall be payable on without the regular interest payment dates for legends restricting the Registrable Securitiestransfer thereof.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof; provided, that no monetary damages shall be assessed against the Company by reason of any failure by the Company to comply with its obligations under Section 2(a) and Section 2(b) hereof, it being understood that the penalty interest rates applicable to the Securities as provided in Section 2(a) hereof are intended to serve as full and complete monetary compensation to the Holders in such circumstances.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextel Communications Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC and subject to the condition set forth in Section 2(b), the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders who are not prohibited by any law or policy of the SEC, or applicable interpretation of the Staff of the SEC, from participating in the Exchange Offer to exchange all of the Securities Registrable Certificates for Exchange Securities Certificates, to have the Exchange Offer Registration Statement declared effective and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to not later than 270 days after the date that Plan Effective Date (or, if the last day of such 270 day period is not a business day, the later of (ifirst business day thereafter) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Certificates validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Certificate exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Certificate, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Registrable Certificates exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Certificates or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Certificates or portions thereof so accepted for exchange by the Issuer Company and, subject to Section 4.01(f) and issueSection 4.03 of the Class A Trust Supplement, and cause the Trustee to promptly issue, authenticate and mail to each Holder, an Exchange Security Certificate equal in principal amount to the principal amount of the Securities Registrable Certificates surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Except as set forth in Section 2(b), the Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses known to the Company (including through DTC) of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Certificates in the Exchange Offer. If the Company effects the Exchange Offer, the Company shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company has accepted all the Class A Certificates theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company in writing that at the time of the consummation of the Exchange Offer (i) any Exchange Certificates 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 (within the meaning of the 0000 Xxx) of the Class A Certificates or the Exchange Certificates, (iii) such Holder is not an affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (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 Certificates and (v) if such Holder is a broker dealer, that it will receive Exchange Certificates for its own account in exchange for Class A Certificates 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 the resale of such Exchange Certificates.
(b) In the event that the Company determines (i1) the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC or (ii2) the Exchange Offer is not consummated on issuance of the Exchange Offer Closing Deadline or (iii) with respect Certificates without transfer restrictions would cause the Class A Trust to any Holder be required to become registered as an investment company under the Investment Company Act of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating 1940, as amended, then the Company shall, in lieu of effecting the registration of the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer Certificates pursuant to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such and at no cost to the holders of the Registrable Certificates, (i) as promptly as practicable, file with the SEC a shelf registration statement covering resales by such Holderof the Registrable Certificates (the “Shelf Registration Statement”), or (Cii) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause the Shelf Registration Statement to be filed as soon as practicable declared or otherwise become effective under the Securities Act by the 90th day after the Exchange Deadline (or, if such determination90th day is not a business day, date or notice is given to the Issuer, as the case may be first business day thereafter) (the “Shelf Filing ObligationRegistration Deadline”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities ) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer agrees to use its reasonable best efforts to keep effective the Shelf Registration Statement continuously effective for a period of one year after its effective date (or for such shorter period that will terminate as shall end when all of the Registrable Securities Certificates covered by the Shelf Registration Statement have been sold pursuant thereto or may be freely sold pursuant to Rule 144 under the Shelf Registration Statement or are no longer outstandingSecurities Act). The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SECSEC or otherwise becomes effective under SEC rules. As provided for in the Pass Through Trust Agreement, if neither the Exchange Offer is consummated nor the Shelf Registration Statement is declared effective or otherwise becomes effective under SEC rules on or prior to the Shelf Registration Deadline, the interest rate on the Class A Certificates will be increased by 0.50% per annum effective as of the first day after the Shelf Registration Deadline but only until the Exchange Offer is consummated or the Shelf Registration Statement is declared or otherwise becomes effective under SEC rules. If the Shelf Registration Statement ceases to be available for more than 45 days during any three-month period or 120 days within any twelve-month period, during the period that it is required to be available pursuant to Section 2(b), the interest rate per annum borne by the Class A Certificates shall be increased by 0.50% from the 46th day or 121st day, as applicable, until such time as the Shelf Registration Statement again becomes available; providedprovided that for the purpose of this sentence, however, that, if, after it has been declared effective, the Shelf Registration Statement shall be deemed to have ceased to be available during:
(A) any period in which the offering of Registrable Securities Certificates pursuant to a the Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during ;
(B) the period occurrence of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the any event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadlineexistence of any fact, as applicable, until the Exchange Offer is completed, in the case a result of an Exchange Offer, or which the Shelf Registration Statement is declared effective shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to which notice has been given by the SEC. Company pursuant to Section 3(c) or Section 3(i); or
(C) the occurrence or existence of any pending corporate development that, in the discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement with respect to which notice has been given by the Company pursuant to Section 3(e).
(e) The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such maximum possible increase in the interest rate. The additional interest payable rate per annum on the Registrable Securities described in this clause (dClass A Certificates pursuant to Section 2(d) hereof, at any time, shall be payable on the regular interest payment dates for the Registrable Securities0.50%.
(ef) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s obligations under Section 2(a) and Section 2(b) hereof.
(g) Each Holder agrees that if the Class A Certificates do not have an Investment Grade Rating and the Holder is (i) an affiliate of the Company or the Class A Trust, or a broker-dealer selling or otherwise transferring Class A Certificates acquired directly from the Company for its own account, or (ii) an underwriter as defined in Section 2(a)(11) of the 1933 Act, such Holder (a) may not resell or otherwise transfer such Class A Certificate under a Shelf Registration Statement and (b) may only offer, sell or otherwise transfer such Class A Certificates to qualified institutional buyers within the meaning of Rule 144A of the rules and regulations promulgated under the 1933 Act.
Appears in 1 contract
Samples: Registration Rights Agreement (American Airlines Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, each of the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and each of the Company and the Guarantors shall use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Each of the Company and the Guarantors shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors will be entitled to close the Exchange Offer 20 business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the 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 (within the meaning of the 1000 Xxx) of the Exchange Securities, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the 1933 Act, of the Company or the Guarantors or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the 1933 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 Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors jointly determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by September 30, 2007 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer due to the public without delivering a prospectus need for compliance with the provisions of the SEC No-Action Letter for Exxon Capital Holding Corp. (available May 13, 1988); each of the Company and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Guarantors shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany and the Guarantors, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company or the Guarantors is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, each of the Issuer Company and the Guarantors shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Each of the Company and the Guarantors agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Each of the Company and the Guarantors further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Each of the Company and the Guarantors agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)September 30, 2007, the annual interest rate on the Registrable Securities will be increased by 0.50% from per annum until the earlier of (i) completion of the Exchange Offer Closing Deadline or Offer; (ii) the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case effectiveness of an Exchange Offer, or the Shelf Registration Statement is declared effective by or (iii) the SEC. The annual additional interest rate on notes being freely tradable under the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities1933 Act.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, each of the Issuer Company and the Guarantors acknowledges that any failure by the Issuer Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Maxcom SF, S.A. De C.V.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer GST Funding, GST USA and GST shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by GST Funding or GST USA, as the Issuer case may be, to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities and Notes, to have such Registration Statement remain effective until the closing of the Exchange OfferOffer and to consummate the Exchange Offer on or prior to the date that is six months after the Closing Date. The Issuer GST Funding or GST USA, as the case may be, shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on not later than 60 days after such effective date. GST Funding or prior to GST USA, as the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer case may be, shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “each such date being an "Exchange Dates”Date");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, GST Funding or GST USA, as the Issuer case may be, shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by GST Funding or GST USA, as the Issuer case may be, and issue, and cause the Trustee to promptly authenticate and mail mail, to each Holder, Holder an Exchange Security Note of equal in principal amount to the principal amount of the Securities surrendered by such Holderamount. The Issuer GST Funding, GST USA and GST shall use its reasonable their best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. GST Funding or GST USA, as the case may be, shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer GST Funding, GST USA or GST determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by November 4, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents, a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holdersale of Registrable Notes, or (C) such Holder is a Broker-Dealer GST Funding, GST USA and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer GST shall use its reasonable their best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerGST Funding, GST USA or GST, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event GST Funding, GST USA or GST, as the Issuer case may be, is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, GST Funding, GST USA or GST, as the Issuer case may be, shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer agrees GST Funding, GST USA and GST agree to use its reasonable their best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) for a period of one year the Registrable Notes covered by such Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer GST Funding, GST USA and GST further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by GST Funding or GST USA, as the Issuer case may be, for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees GST Funding, GST USA and GST agree to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer GST Funding, GST USA and GST shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b)) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after November 4, 1998, interest (in addition to the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual accrual of original issue discount or interest rate otherwise due on the Registrable Securities Notes) on the Notes will accrue, at an annual rate of 0.5%, from accrual of original issue discount or November 4, 1998 and be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, payable in cash until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf a shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer acknowledges GST Funding, GST USA and GST acknowledge that any failure by the Issuer GST Funding, GST USA and GST to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s GST Funding's, GST USA's and GST's obligations under Section 2(a) and Section 2(b) hereof.
(f) During any consecutive 365-day period, GST Funding, GST USA and GST may suspend availability of any Shelf Registration Statement for no more than two periods of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to the maturity of the Notes) and for no more than an aggregate of 60 days during any 365-day period, if GST's Board of Directors determines in good faith that there is a valid purpose for such suspension.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its reasonable best efforts to (i) cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and within 210 days after the Closing Date (or, if such 210th day is not a Business Day, the next succeeding Business Day), (ii) use their best efforts to have such Registration Statement declared effective within 330 days after the Closing Date (or, if such 330th day is not a Business Day, the next succeeding Business Day) and remain effective until the closing of the Exchange Offer. The Issuer shall commence Offer and (iii) use their best efforts to Consummate the Exchange Offer promptly after not later than 360 days following the Closing Date (or, if such 360th day is not a Business Day, the next succeeding Business Day)(the “Exchange Offer Registration Statement has been declared effective by the SEC, and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of Date”).
(i) 425 days following The Company and the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through The Depository Trust Company or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(iA) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(iiB) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Acceptance Dates”);
(iiiC) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(ivD) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActAcceptance Date; and
(vE) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Acceptance Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. .
(ii) As soon as practicable after the last Exchange Acceptance Date, the Issuer Company shall:
(iA) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(iiB) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. .
(iii) The Issuer Company and the Guarantors shall use its reasonable their best efforts to complete the Exchange Offer as provided above on or prior to the Exchange Date and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, conditions other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(iv) If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer).
(v) Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not an affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by Consummated as soon as practicable after the Exchange Offer Closing Deadline last Acceptance Date because it would violate applicable law or the applicable interpretations or policy of the Staff of the SEC, (ii) for any reason the Exchange Offer is not consummated on Consummated by the Exchange Offer Closing Deadline Date, or (iii) prior to the Exchange Date: (A) the Initial Purchasers notify the Company that any Registrable Securities are not eligible to be exchanged for Exchange Securities in the Exchange Offer, (B) with respect to any Holder of Registrable Securities Securities, such Holder notifies the Company that (Ax) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (By) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (Cz) such Holder is a Brokerbroker-Dealer dealer and holds Securities acquired directly from the Issuer Company or one of its affiliatesaffiliates or (C) in the case of any Initial Purchaser, thensuch Initial Purchaser notifies the Company it will not receive Freely Tradable Exchange Securities in exchange for Registrable Securities constituting any position of such Initial Purchaser’s unsold allotment, upon such Holder’s written request, then the Issuer Company and the Guarantors shall use its reasonable their best efforts to cause to be filed as soon as practicable after such determination, date on or notice is given prior to the Issuer30th day after the date such obligation arises (but no earlier than the 210th day after the Closing Date, as or if such 210th day is not a Business Day, the case may be next succeeding Business Day (such date being the “Shelf Filing ObligationDeadline”), a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In SEC on or before the event 60th day after the Issuer Shelf Filing Deadline (or if such 60th day is required to file not a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentenceBusiness Day, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offernext succeeding Business Day). The Issuer agrees Company and the Guarantors agree to use its reasonable their best efforts to keep the Shelf Registration Statement continuously effective for a period until the earlier of one year (X) two years following the effectiveness date of such Shelf Registration Statement or (Y) such shorter period that will terminate when time as all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to this Section 2(a) or Section 2(b)2. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that .
(ae) we do not consummate If either (i) the Exchange Offer on or prior Registration Statement covering the offer by the Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities has not been filed within 210 days after the Closing Date (or, if such 210th day is not a Business Day, the next succeeding Business Day), (ii) such Exchange Offer Registration Statement has not been declared effective within 330 days after the Closing Date (or, if such 330th day is not a Business Day, the next succeeding Business Day), (iii) the Exchange Offer Closing has not been Consummated by the Exchange Date, (iv) any Shelf Registration Statement, if required hereby, has not been declared effective by the SEC within the required period following the Shelf Filing Deadline or (bv) a Shelf any Registration Statement is not required by this Agreement has been declared effective on or prior but ceases to 90 days after the Shelf Filing Obligation arises be effective at any time at which it is required to be effective under this Agreement (which shall each such event referred to in no event be earlier than the Exchange Offer Closing Deadlineclauses (i) through (the v), a “Effectiveness DeadlineRegistration Default”), the annual Company hereby agrees that the interest rate on borne by the Registrable Securities shall be increased by 0.25% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by an additional 0.25% per annum at the end of each subsequent 90-day period, but in no event shall such increase exceed 1.00% per annum, immediately following the occurrence of any Registration Default (such increased interest being “Special Interest”). At such time as all Registration Defaults relating to the particular Registrable Securities are cured, the interest rate borne by the relevant Registrable Securities will be reduced to the original interest rate borne by such Registrable Securities; provided, however, that, if after any such reduction in interest rate pursuant to the preceding clause, a different Registration Default occurs, the interest rate borne by the relevant Registrable Securities shall again be increased by 0.50% from pursuant to the Exchange Offer Closing Deadline or foregoing provisions. All obligations of the Effectiveness Deadline, as applicable, until Company and the Exchange Offer is completed, Guarantors set forth in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled preceding paragraph that are outstanding with respect to any Registrable Security at the time such increase security ceases to be a Registrable Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitiesfull.
(ef) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof).
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer GST Funding, GST USA and GST shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by GST Funding or GST USA, as the Issuer case may be, to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities and Notes, to have such Registration Statement remain effective until the closing of the Exchange OfferOffer and to consummate the Exchange Offer on or prior to the date that is six months after the Closing Date. The Issuer GST Funding or GST USA, as the case may be, shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on not later than 60 days after such effective date. GST Funding or prior to GST USA, as the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer case may be, shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “each such date being an "Exchange Dates”Date");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, GST Funding or GST USA, as the Issuer case may be, shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by GST Funding or GST USA, as the Issuer case may be, and issue, and cause the Trustee to promptly authenticate and mail mail, to each Holder, Holder an Exchange Security Note of equal in principal amount to the principal amount of the Securities surrendered by such Holderamount. The Issuer GST Funding, GST USA and GST shall use its reasonable their best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. GST Funding or GST USA, as the case may be, shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer GST Funding, GST USA or GST determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by November 13, 1997 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Placement Agents, a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Placement Agents in connection with any offering or available for such resales by such Holdersale of Registrable Notes, or (C) such Holder is a Broker-Dealer GST Funding, GST USA and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer GST shall use its reasonable their best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerGST Funding, GST USA or GST, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event GST Funding, GST USA or GST, as the Issuer case may be, is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, GST Funding, GST USA or GST, as the Issuer case may be, shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Notes and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer agrees GST Funding, GST USA and GST agree to use its reasonable their best efforts to keep the Shelf Registration Statement continuously effective until the expiration of the period referred to in Rule 144(k) for a period of one year the Registrable Notes covered by such Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer GST Funding, GST USA and GST further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by GST Funding or GST USA, as the Issuer case may be, for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable their best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees GST Funding, GST USA and GST agree to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer GST Funding, GST USA and GST shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b)) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after November 13, 1997, interest (in addition to the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate otherwise due on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate Notes) on the Registrable Securities Notes will not accrue, at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one an annual rate of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)0.5%, the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitiesfrom November 13, 1997.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer acknowledges GST Funding, GST USA and GST acknowledge that any failure by the Issuer GST Funding, GST USA and GST to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s GST Funding's, GST USA's and GST's obligations under Section 2(a) and Section 2(b) hereof.
(f) During any consecutive 365-day period, GST Funding, GST USA and GST may suspend availability of any Shelf Registration Statement for no more than two periods of up to 45 consecutive days (except for the consecutive 45-day period immediately prior to the maturity of the Notes) and for no more than an aggregate of 60 days during any 365-day period, if GST's Board of Directors determines in good faith that there is a valid purpose for such suspension.
Appears in 1 contract
Samples: Registration Rights Agreement (GST Telecommunications Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by July 12, 2008 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)July 12, 2008, the annual interest rate on the Registrable Securities will be increased by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company 6 shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an and Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. 7 The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by October 13, 1998 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.. 8
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)October 13, 1998, the annual interest rate on the Registrable Securities Notes will be increased increase by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Notes Registration Rights Agreement (Long Distance International Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business 30 days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Securities not tendered will remain outstanding and shall continue to accrue interestdividends at the initial rate borne by the Registrable Securities and, but other than Registrable Securities referred to in Section 2(b) below, will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Securities exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Securities, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount number of shares of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Registrable Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate countersign and register and mail to each Holder, Exchange Securities with an Exchange Security aggregate liquidation preference equal in principal amount to the principal amount aggregate liquidation preference of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer Company shall not be subject inform the Placement Agents of the names and addresses of the Holders to any conditions, other than that whom the Exchange Offer does not violate is made, and the Placement Agents shall have the right, subject to applicable law or any applicable interpretation law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Staff of the SECExchange Offer.
(b) In the event that (i) the Issuer determines that the Exchange Offer has been completed and in the opinion of counsel for the Placement Agents a Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not Statement must be consummated filed and a Prospectus must be delivered by the Exchange Offer Closing Deadline because it would violate applicable law Placement Agents in connection with any offering or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not consummated on the Exchange Offer Closing Deadline or (iii) with respect to any Holder sale of Registrable Securities (A) such Holder is prohibited held by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and them that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestconstitute an unsold allotment, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders Placement Agents of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result The Placement Agents shall sell out their unsold allotments before making sales of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all any other Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales Placement Agents shall notify the Company upon the sale of Registrable Securities held by the Holders after completion all of the Exchange Offertheir unsold allotments. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a the period of one year referred to in Rule 144(k) or such shorter period that will terminate when until all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer is not consummated on or prior to April 30, 1998, thereafter an additional incremental interest amount will accrue at an annual rate of 0.5% of the Accreted Value of the Securities as of the most recent Semi-Annual Accretion Date (as defined in the Indenture), beginning on May 1, 1998, and, if the Exchange Offer Closing Deadline is not consummated on or prior to July 31, 1998, thereafter an additional incremental interest amount will accrue at an annual rate of 0.5% of the Accreted Value of the Securities as of the most recent Semi-Annual Accretion Date, beginning on May 1, 1998, until the earlier of the date upon which (bi) the Exchange Offer is consummated, (ii) a Shelf Registration Statement is not declared effective on or prior with respect to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the all Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by or (iii) the SEC. The annual additional interest rate on Securities become freely tradeable without registration under the Registrable Securities will not at 1933 Act; provided that, upon the request of any time exceed 0.50% notwithstanding Holder of the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)Securities, the Registrable Company will deliver to such Holder certificates evidencing such Holder's Securities held by Holders who do not deliver such information to without the Issuer when so requested will not be entitled to any such increase in legends restricting the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitiestransfer thereof.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Nextel Communications Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts (i) to cause to be filed by with the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective SEC an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Certificates for Exchange Securities Certificates, (ii) to have the Exchange Offer Registration Statement declared effective and (iii) to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall, or shall cause the Trustee to, commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Certificates validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”"EXCHANGE DATE");
(iii) that any Registrable Security Certificate not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Certificate exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Certificate, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Certificates delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Certificates exchanged. As soon as practicable after the last Exchange Date, the Issuer shallCompany shall or shall cause the Trustee to:
(i) accept for exchange Securities Registrable Certificates or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Certificates or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Certificates equal in principal amount to the principal amount of the Securities Registrable Certificates surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws laws, rules and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Certificates in the Exchange Offer. Each Holder participating in the Exchange Offer shall be required to represent to the Company at or prior to the consummation of the Exchange Offer that (i) any Exchange Certificates 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 Certificates or the Exchange Certificates within the meaning of the 1933 Act, and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of the Company or the Trustee, nor a broker-dealer tendering Initial Certificates acquired directly from the Company or the Class G Trust for its own account. If such Holder is a broker-dealer, it will be required to represent that the Initial Certificates were acquired as a result of market-making activities or other trading activities and that it will deliver a prospectus in connection with any resale of such Exchange Certificates. Each such Holder, whether or not it is a broker-dealer, shall also represent that it is not acting on behalf of any person that could not truthfully make any of the foregoing representations contained in this paragraph. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply (to the extent applicable) solely with respect to Registrable Certificates held by the Initial Purchasers or any Participating Broker-Dealers (as defined in Section 4(a)) as provided in (and subject to) Section 2(b)(iii), and the Company shall have no further obligation to register Initial Certificates (other than such Registrable Certificates of the Initial Purchasers and Participating Broker-Dealers) pursuant to Section 2(b) of this Agreement.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer 270th day from the Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Certificates, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Certificates (in the case of clause (i) above) or by the Initial Purchasers (in the case of clause (iii) above) and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities Certificates and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Certificates held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Certificates or such shorter period that will terminate when all of the Registrable Securities Certificates covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingmay be freely sold pursuant to Rule 144(k) of the 1933 Act. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Certificates copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Certificates pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Certificates pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Shelf Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Certificates pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days the 270th day (or, if such 270th day is not a business day, the first business day thereafter) after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)Date, the annual interest rate on the Registrable Securities Initial Certificates will be increased by 0.500.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on In the Registrable Securities will not event that the Shelf Registration Statement required to be effective pursuant to Section 2(b) hereof ceases to be effective at any time exceed 0.50% notwithstanding during the Issuer’s failure to meet period specified by Section 2(b) hereof for more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q)60 days, whether or not consecutive, during any 12-month period, the Registrable Securities held interest rate borne by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) Initial Certificates shall be payable on increased by 0.25% per annum from the regular interest payment dates for 61st day of the Registrable Securities.applicable
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the each Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Delta Air Lines Inc /De/)
Registration Under the 1933 Act. (a) To If any Registrable Securities are outstanding as of the 366th calendar day following the Closing Date, then to the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their commercially reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after prepare and file with the date of issuance of the Securities and (ii) 90 days after the consummation of the MergerSEC, and cause to become effective an Exchange Offer Registration Statement covering on an appropriate form under the offer by 1933 Act with respect to a proposed Exchange Offer and the Issuer issuance and delivery to the Holders to Holders, in exchange all for such Registrable Securities, of the Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer shall commence the Exchange Offer promptly after Securities, (ii) cause the Exchange Offer Registration Statement has been to become or be declared effective by under the SEC1933 Act, and use its reasonable best efforts to have (iii) cause the Exchange Offer to be consummated on or prior to the date that is the later of (i) 425 days 451st calendar day following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegramfacsimile transmission, telex, facsimile transmission electronic mail or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing ix xxxxdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and the Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
(b) In If any Registrable Securities are outstanding as of the event that 366th calendar date after the Closing Date and (i) the Issuer determines that the Exchange Offer Registration provided for if, because of any changes in Section 2(a) above is not available law, SEC rules or that the Exchange Offer may not be consummated regulations or applicable interpretations thereof by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff staff of the SEC, neither the Company nor the Guarantors are permitted to effect the Exchange Offer as contemplated by Section 2(a) above, (ii) for any other reason the Exchange Offer is not consummated on within 451 calendar days of the Exchange Offer Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or sale of Registrable Securities, the Company and the Guarantors will, at their cost, as promptly as reasonably practicable, and in any event on or prior to the public without delivering a prospectus and that 30th calendar day after such obligation arises, but in no event earlier than the Prospectus contained in 451st calendar day after the Exchange Offer Registration Statement is not appropriate or available for such resales by such HolderClosing Date, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all of the such Registrable Securities and to have such Shelf Registration Statement declared effective by the SECSEC on or prior to the 40th calendar day after such filing. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iiib) of the preceding sentence, the Issuer Company and the Guarantors shall use its their commercially reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period of one year until two years after the Closing Date with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer Freely Transferable or cease to be outstanding. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its their commercially reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicablepracticable thereafter. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the any registration required pursuant to Section 2(a) or and Section 2(b)) hereof. Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the any Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, that if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that any Registrable Securities are outstanding as of the 366th calendar day after the Closing Date and either (ai) we do not consummate the Exchange Offer is not consummated on or prior to the Exchange Offer 451st calendar day following the Closing Deadline or Date, (bii) a Shelf Registration Statement applicable to such Registrable Securities, if required pursuant to Section 2(b), is not filed or declared effective on when required pursuant to Section 2(b) or prior (iii) a Shelf Registration Statement applicable to 90 such Registrable Securities, if required pursuant to Section 2(b), is declared effective as required but thereafter fails to remain effective or usable in connection with resales for more than 60 calendar days after in the Shelf Filing Obligation arises aggregate in any twelve month period (which shall each such event referred to in no event be earlier than the Exchange Offer Closing Deadlineclauses (i) through (the iii) above, a “Effectiveness DeadlineRegistration Default”), the annual additional interest rate (“Additional Interest”), payable in cash, will accrue on the such Registrable Securities will at a rate of 0.25% per annum for the first 90- day period immediately following the occurrence of a Registration Default, with such Additional Interest to be increased by 0.50an additional 0.25% from the Exchange Offer Closing Deadline or the Effectiveness Deadlineper annum with respect to each subsequent 90-day period, as applicableup to a maximum Additional Interest rate of 1.00% per annum, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to provided that any such increase in Additional Interest shall cease to accrue on any Registrable Security upon the interest rate. The additional interest payable earlier of (A) the date on which all Registration Defaults with respect to such Registrable Security have been cured or (B) the date on which such Registrable Securities described in this clause (d) shall Security ceases to be payable on the regular interest payment dates for the a Registrable SecuritiesSecurity.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Seagate Technology Holdings PLC)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount, or principal amount at maturity, in the case of Securities Registrable Notes that are Discount Notes, of Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note of the same series equal in principal amount or principal amount at maturity, in the case of Discount Notes, and of like terms to the principal amount of the Securities Registrable Notes surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer date that is six months after the Closing Deadline Date or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales sale of Registrable Notes by such HolderInitial Purchasers, or (C) such Holder is a Broker-Dealer and holds Securities of Registrable Notes that were acquired directly by the Initial Purchasers from the Issuer or one of its affiliates, then, upon such Holder’s written requestCompany, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Notes covered by the Shelf Registration Statement, or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other applicable rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and, if a Shelf Registration Statement is required hereby, the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days the date that is six months after the Shelf Filing Obligation arises Closing Date, (which shall in no event be earlier than i) the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities Senior Notes will increase by 0.5% per annum and (ii) with respect to the Discount Notes, interest (in addition to the accrual of original issue discount on the Discount Notes and interest otherwise due on the Discount Notes) will accrue at the rate of 0.5% per annum of the Accreted Value and the preceding Semi-Annual Accrual Date and in each case, be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadlinepayable in cash semi-annually on April 15 and October 15 of each year, as applicablecommencing April 15, 1999, until the date the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the a Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after as soon as practicable the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) otherwise delivering the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered in accordance with the terms of the Exchange Offer, as set forth in the Exchange Offer Registration Statement, will be accepted for exchange;
(ii) the dates expiration date of acceptance for exchange the Exchange Offer (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”Date");
(iii) that any Registrable Security not validly tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the any enclosed letters of transmittaltransmittal and related documents, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Exchange Offer Registration Statement and letters and transmittal prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) and manner specified in the notice Exchange Offer Registration Statement and letters and transmittal, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Holders tender the Registrable Securities to the Company in compliance with the terms of the Exchange Offer as set forth in the Exchange Offer Registration Statement and that (ii) the Exchange Offer does not violate applicable law securities laws or any other laws, or any applicable interpretation of the Staff of the SEC. The Company shall, to the extent permitted by law, inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made, and the Placement Agents shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. The Company will also forward regularly to the Placement Agents, or their counsel, participation updates provided to the Company by the exchange agent for the Exchange Offer.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by the Exchange Offer Closing Deadline date that is six months after the earlier of (x) the closing date of the Richmond-Norfolk Acquisition and (y) the Termination Date or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Placement Agents a Registration Statement must be filed and a Prospectus must be delivered by the Placement Agents in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange OfferPlacement Agents, or (B) such Holder may not resell the Exchange of Registrable Securities that were acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly Placement Agents from the Issuer or one of its affiliates, then, upon such Holder’s written requestCompany, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentenceabove, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Placement Agents after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to material information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the -------- ------- offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days the date that is six months after the Shelf Filing Obligation arises earlier of (which shall in no event be earlier than x) the Exchange Offer Closing Deadlineclosing date of the Richmond-Norfolk Acquisition and (y) (the “Effectiveness Deadline”)Termination Date, the annual interest rate on the Registrable Securities will be increased by 0.50.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (CFW Communications Co)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, file and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities and Notes, to have such Registration Statement remain effective until the closing of the Exchange OfferOffer and to consummate the Exchange Offer on or prior to March 29, 1998. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”). The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered tendered, in accordance with the terms and subject to the conditions, of the Exchange Offer, will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 30 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security Note not validly tendered will remain outstanding and continue to accrete in value until October 1, 2002 and thereafter will accrue interestinterest in accordance with the terms of the Notes, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders each Holder electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed letters letter of transmittaltransmittal delivered in the Exchange Offer, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his its election to have such Securities Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly duly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Note equal in principal amount accreted value and face amount, respectively, to the principal amount accreted value and face amount, respectively, of the Securities Registrable Note surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, condition other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Placement Agents of the names and addresses of the Holders to whom the Exchange Offer is made.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on by Xxxxx 00, 0000, (xxx) the Exchange Offer Closing Deadline has been completed and, in the opinion of counsel for the Placement Agents, a Registration Statement must be filed and a Prospectus must be delivered by a Placement Agent in connection with any offering or sale by such Placement Agent of Registrable Notes that were a part of such Placement Agent's original unsold allotment or (iiiiv) with respect to in the case of any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating that participates in the Exchange Offer, or (B) such Holder does not receive Exchange Notes on the date of the exchange that may not resell the Exchange Securities acquired by it be sold without restriction under state and federal securities laws, then in the Exchange Offer to case of each of the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or clauses (Ci) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written requestthrough (iv), the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities Notes and to have such Shelf Registration Statement declared effective by the SECSEC within six months of the Closing Date. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, in addition to its obligations under the Issuer foregoing Section 2(a), the Company shall use its reasonable best effort to file as soon as practicable after delivery of such opinion of counsel and use its best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and SEC, within six months of the Closing Date, a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Holders such Placement Agent as part of its original unsold allotment after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the time period of one year referred to in Rule 144(k) under the 1933 Act with respect to all Registrable Notes covered by the Shelf Registration Statement or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; providedPROVIDED, howeverHOWEVER, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or courtcourt interferes with the offering of Registered Notes pursuant to a Shelf Registration Statement, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities Notes pursuant to such Registration Statement may legally resume. In As provided for in the Indenture, in the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and, if a Shelf Registration Statement is required hereby, the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after March 29, 1998, the Shelf Filing Obligation arises interest rate (which shall in no event be earlier than addition to the accrual of original issue discount during the period ended October 1, 2002) on the Notes (and the Exchange Offer Closing DeadlineNotes) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased increase by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the a Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securitieseffective.
(e) Without limiting the remedies available to the Initial Purchasers Placement Agents and the Holders, the Issuer Company acknowledges that any failure by the Issuer Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Placement Agents or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Placement Agents or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s Company's obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Cellnet Data Systems Inc)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SECSEC staff, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days to file with the SEC on or prior to the 120th calendar day after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective Issue Date an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Securities Registrable Notes for Exchange Securities Notes (the "EXCHANGE OFFER"), (ii) to cause such Exchange Offer Registration Statement to be declared effective on or prior to the 180th calendar day after the Issue Date and (iii) to have such Exchange Offer Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is 45th calendar day after the later of (i) 425 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Registration Statement is declared effective by the SEC. The Issuer Company shall commence the Exchange Offer by mailing mailing, or electronically transmitting (through causing to be mailed, the facilities Prospectus forming a part of The Depositary Trust Company) the related exchange offer Prospectus Exchange Offer Registration Statement and the accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Securities Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days Business Days from the date such notice is mailed) (the “Exchange Dates”"EXCHANGE DATE");
(iii) that that, subject to the limited exceptions set forth herein, any Registrable Security Notes not tendered in the Exchange Offer will remain outstanding and will continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Security Registrable Note exchanged pursuant to the Exchange Offer will be required to (a) surrender such SecurityRegistrable Note, together with the enclosed relevant letters of transmittaltransmittal and related documents, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus forming a part of the Exchange Offer Registration Statement prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice Prospectus forming a part of the Exchange Offer Registration Statement a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchangedRegistrable Notes exchanged and the principal amount of Registrable Notes subject to the withdrawal notice. As soon as practicable Promptly after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Securities Registrable Notes or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities Registrable Notes or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security Notes equal in principal amount to the principal amount of the Securities surrendered Registrable Notes tendered by such HolderHolder and accepted for exchange pursuant to the Exchange Offer. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws laws, rules and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff SEC staff. Each Holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange 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 SECRegistrable Notes or the Exchange Notes within the meaning of the 1933 Act, and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933 Act, of the Company, nor a broker-dealer tendering Registrable Notes acquired directly from the Company or one of its affiliates (as defined in Rule 405 of the 1933 Act). If a Holder participating in the Exchange Offer is a broker-dealer, it will be required to represent that the Registrable Notes were acquired as a result of market-making activities or other trading activities and that it will deliver a Prospectus in connection with any resale of such Exchange Notes. Each such Holder, whether or not it is a broker-dealer, shall also represent that it is not acting on behalf of any person that could not truthfully make any of the foregoing representations contained in this paragraph. Upon consummation of the Exchange Offer in accordance with this Section 2(a), the provisions of this Agreement shall continue to apply (to the extent applicable) solely with respect to Registrable Notes, as provided in (and subject to) Sections 2(b)(iii), 2(b)(iv) and 2(b)(v) hereof, and the Company shall have no further obligation to register Initial Notes pursuant to Section 2(b) hereof.
(b) In the event that (i) changes in the Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by the Exchange Offer Closing Deadline because it would violate applicable law or the applicable interpretations of the Staff of SEC staff do not permit the SECCompany to effect the Exchange Offer Registration, (ii) the Exchange Offer is not for any other reason consummated by on or prior to the Exchange Offer Closing Deadline 225th calendar day (or, if such 225th day is not a Business Day, the first Business Day thereafter) after the Issue Date, or (iii) an Initial Purchaser so requests with respect to the Registrable Notes held by it not eligible to be exchanged for Exchange Notes in the Exchange Offer Registration and held by it following the consummation of the Exchange Offer, (iv) any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating interpretations do not permit any Holder to participate in the Exchange Offer, or (Bv) such any Holder may not resell the Exchange Securities acquired by it that participates in the Exchange Offer does not receive freely transferable Exchange Notes in exchange for tendered Registrable Notes, the Company shall, at no cost to the public without delivering a prospectus and Holders of the Registrable Notes, as promptly as practicable (but in any event within 30 calendar days of the date on which it is determined that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holderany of (i), (ii), (iii), (iv) or (Cv) such Holder shall exist or 255 calendar days after the Issue Date, whichever is a Broker-Dealer and holds Securities acquired directly from earlier), file with the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, SEC a Shelf Registration Statement (or, if required by applicable law or the interpretations of the SEC staff, additional Shelf Registration Statements) providing for the sale by the Holders of all of the Registrable Securities Notes (in the case of clause (i) or (ii) above) or by the relevant Holders of the Registrable Notes (in the case of clauses (iii), (iv) and (v) above) and use its reasonable best efforts to have cause such Shelf Registration Statement Statement(s) to be declared effective by the SECSEC on or prior to the 90th calendar day after the date on which it is determined that any of clause (i), (ii), (iii), (iv) or (v) of this Section 2(b) exists. In the event the Issuer Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities Notes and a such Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities Notes held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) under the 1933 Act with respect to the Registrable Notes or such shorter period that will terminate when all of the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingmay be freely sold pursuant to Rule 144(k) under the 1933 Act. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement or file additional Shelf Registration Statements if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by the SEC staff or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement Statement(s) to become usable as soon as thereafter practicable. The Issuer Upon written request, the Company agrees to furnish to the such Holders of Registrable Securities copies of any such supplement or amendment to the Shelf Registration Statement promptly after its being used or it is filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities Notes pursuant to a Shelf Registration Statement is interfered with by any stop orderStatement. For purposes of this Agreement, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement Company will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant used its reasonable best efforts to such Registration Statement may legally resume. In the event that (a) we do not consummate cause the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement, as the case may be, to be filed or to become, or to remain, effective during the requisite periods if it voluntarily takes any action that would result in any such Registration Statement is not being declared effective by or in the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities Notes covered thereby not being able to provide exchange or offer and sell such Registrable Notes during that period unless (A) such action is required by applicable law or (B) such action is taken by the information as described Company in Section 3(qgood faith and for valid business reasons (not including avoidance of the Company's obligations hereunder), including the Registrable Securities held by Holders who do not deliver such information to acquisition or divestiture of assets, so long as the Issuer when so requested will not be entitled to any such increase in Company promptly complies with the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under requirements of Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b3(i) hereof, if applicable.
Appears in 1 contract
Samples: Registration Rights Agreement (RPM International Inc/De/)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder statingHolder, through DTC or otherwise, stating in such Prospectus or accompanying documents, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company and the Guarantors shall use its their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors shall be entitled to close the Exchange Offer twenty (20) business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered and not withdrawn in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors in writing that at the time of the consummation of the 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 (within the meaning of the 0000 Xxx) of the Exchange Securities and (iii) such Holder is not affiliate of either the Company or any of the Guarantors within the meaning of Rule 405 under the 1933 Act, (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 Securities that were acquired as a result of market making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with the resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by August 16, 2013 or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus has been completed and that the Prospectus contained in the Exchange Offer opinion of counsel for the Initial Purchasers a Registration Statement is not appropriate must be filed and a Prospectus must be delivered by the Initial Purchasers in connection with any offering or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one sale of its affiliates, then, upon such Holder’s written requestRegistrable Securities, the Issuer Company and the Guarantors shall use its their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is Company and the Guarantors are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer Company and the Guarantors shall use its their reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchasers after completion of the Exchange Offer. The Issuer agrees Company and the Guarantors agree to use its their reasonable best efforts to keep the Shelf Registration Statement continuously effective for a period until the second anniversary of one year the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company and the Guarantors further agrees agree to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer agrees Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the Guarantors are required to include any Registrable Securities in a Shelf Registration Statement, the Company and the Guarantors may include such Registrable Securities on any other shelf registration statement otherwise filed by the Company with respect to any of its other securities.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)August 16, 2013, the annual interest rate on the Registrable Securities will be increased by 0.500.5% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, per annum until the Exchange Offer is completed, in the case of an Exchange Offer, consummated or the Shelf Registration Statement is declared effective by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges Company and the Guarantors acknowledge that any failure by the Issuer Company or the Guarantors to comply with its their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s or the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, each of the Issuer Company and the Guarantors shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the Merger, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company and the Guarantors to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and each of the Company and the Guarantors shall use its reasonable best efforts to have the Exchange Offer consummated on or prior to the date that is the not later of (i) 425 than 60 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)after such effective date. The Issuer Company and the Guarantors shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged. As soon as reasonably practicable after the last Exchange Date, the Issuer Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Each of the Company and the Guarantors shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Company and the Guarantors shall inform the Initial Purchaser of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchaser shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. If the Company and the Guarantors effect the Exchange Offer, the Company and the Guarantors will be entitled to close the Exchange Offer 20 business days after such commencement (provided that the Company and the Guarantors have accepted all the Securities theretofore validly tendered in accordance with the terms of the Exchange Offer). Each Holder participating in the Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the 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 (within the meaning of the 1000 Xxx) of the Exchange Securities, (iii) such Holder is not an “affiliate,” as defined in Rule 405 of the 1933 Act, of the Company or the Guarantors or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the 1933 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 Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) the Issuer determines Company and the Guarantors jointly determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason consummated on the Exchange Offer Closing Deadline by September 30, 2007 or (iii) the Exchange Offer has been completed and in the opinion of counsel for the Initial Purchaser a Registration Statement must be filed and a Prospectus must be delivered by the Initial Purchaser in connection with respect to any Holder offering or sale of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer due to the public without delivering a prospectus need for compliance with the provisions of the SEC No-Action Letter for Exxon Capital Holding Corp. (available May 13, 1988); each of the Company and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Guarantors shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or notice of such opinion of counsel is given to the IssuerCompany and the Guarantors, as the case may be (the “Shelf Filing Obligation”be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer Company or the Guarantors is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, each of the Issuer Company and the Guarantors shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders Initial Purchaser after completion of the Exchange Offer. The Issuer Each of the Company and the Guarantors agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Each of the Company and the Guarantors further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company and the Guarantors for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Each of the Company and the Guarantors agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company and the Guarantors shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to is not consummated and the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”)September 30, 2007, the annual interest rate on the Registrable Securities will be increased by 0.50% from per annum until the earlier of (i) completion of the Exchange Offer Closing Deadline or Offer; (ii) the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case effectiveness of an Exchange Offer, or the Shelf Registration Statement is declared effective by or (iii) the SEC. The annual additional interest rate on notes being freely tradable under the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable Securities1933 Act.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, each of the Issuer Company and the Guarantors acknowledges that any failure by the Issuer Company or any Guarantor to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers Purchaser or any Holder may obtain such relief as may be required to specifically enforce the IssuerCompany’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Maxcom SF, S.A. De C.V.)
Registration Under the 1933 Act. (a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Issuer Company shall use its reasonable best efforts to cause to be filed by the date that is the later of (i) 365 filed, within 150 days after the date of issuance of the Securities and (ii) 90 days after the consummation of the MergerClosing Date, and cause to become effective an Exchange Offer Registration Statement covering the offer by the Issuer Company to the Holders to exchange all of the Registrable Securities for Exchange Securities Securities, to have the Exchange Offer Registration Statement declared effective within 180 days of the Closing Date and to have such Registration Statement remain effective until the closing of the Exchange Offer. The Issuer Company shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement has been declared effective by the SEC, SEC and use its reasonable best efforts to have consummate the Exchange Offer consummated on or prior to the date that is the later of (i) 425 within 210 days following the issuance of the Securities and (ii) 150 days following the consummation of the Merger (the “Exchange Offer Closing Deadline”)Date. The Issuer Company shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related exchange offer Exchange Offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is mailed) (the “"Exchange Dates”");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (a) surrender such Registrable Security, together with the enclosed letters applicable letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice prior to the close of business on the last Exchange Date and (b) at the time of consummation of the Exchange Offer, (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer but will not receive Exchange Securities for its own account in exchange for Securities, neither the Holder nor any such other Person is engaged in or intends to participate in a distribution of the Exchange Securities and (D) that such Holder is not an Affiliate (as defined in Rule 501(b) under the 0000 Xxx) of the Issuer. If the Holder is a Broker-Dealer that will receive Exchanger Securities for its own account in exchange for Securities, it will represent that the Securities to be exchanged for the Exchange Securities were acquired by it as a result of its market-making activities or other trading activities, and will acknowledge that it will deliver a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities. It is understood that, by acknowledging that it will deliver, and by delivering, a prospectus meeting the requirements of the Act in connection with any resale of such Exchange Securities, the Holder is not admitting that it is an “underwriter” within the meaning of the ActDate; and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities 2001 Notes exchanged. As soon as practicable after the last Exchange Date, the Issuer Company shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuer Company and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder. The Issuer Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC and (ii) there is no injunction, order or decree issued by any court or any governmental agency that would prohibit, prevent or otherwise materially impair the ability of the Company to proceed with the Exchange Offer. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer. For a period of 90 days after the Exchange Date, the Company shall also use its reasonable best efforts to make available a prospectus meeting the requirements of the 1933 Act which may be the Prospectus contained in the Exchange Offer Registration Statement or the Prospectus contained in a Shelf Registration Statement, as such Registration Statements may be amended or supplemented from time to time, to holders which are broker-dealers (and which identify themselves as such) in connection with resales of Exchange Securities received in exchange for Registrable Securities, where such Registrable Securities were acquired by such broker-dealers as a result of market-making or other trading activities; PROVIDED that each holder which is a broker-dealer agrees that, upon receipt of notice from the Company of the occurrence of any event which makes any statement in the Prospectus untrue in any material respect or which requires the making of any changes in the Prospectus in order to make the statements therein not misleading (which notice the Company agrees to deliver promptly to such broker-dealer), such broker-dealer will suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission and has furnished copies of the amended or supplemented Prospectus to such broker-dealer. If the Company shall give any such notice to suspend the use of the Prospectus, it shall extend the 90- day period referred to above by the number of days during the period from and including the date of the giving of such notice to and including the date when broker-dealers shall have received copies of the supplemented or amended Prospectus necessary to permit resales of the Exchange Securities. In the event that, at the Exchange Date, any of the Initial Purchasers shall not have sold all of the Registrable Securities initially purchased from the Company by such Initial Purchaser to unaffiliated investors, upon such Initial Purchaser's request (made within 10 days after the Exchange Date), the Company will use its best efforts to file promptly, or if so requested by any Initial Purchaser, on a later date (which date shall not exceed the date that is six months after the Exchange Date), a Shelf Registration Statement or a post-effective amendment to the Exchange Offer Registration Statement, if acceptable to the SEC, to register all such Registrable Securities for all such Initial Purchasers. The Company will keep such Shelf Registration Statement or other Registration Statement effective and make available to such Initial Purchasers a Prospectus meeting the requirements of the 1933 Act for a period of 120 days, PROVIDED that each such Initial Purchaser agrees that, upon receipt of notice from the Company of the happening of any event which makes any statement in the Prospectus untrue in any material respect or which requires the making of any changes in the Prospectus in order to make the statements therein not misleading (which notice the Company agrees to deliver promptly to such Initial Purchasers), such Initial Purchaser will suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission and has furnished copies of the amended or supplemented Prospectus to such Initial Purchaser. If the Company shall give any such notice to suspend the use of the Prospectus, it shall extend the 120-day period referred to above by the number of days during the period from and including the date of the giving of such notice to and including the date when Initial Purchasers shall have received copies of the supplemented or amended Prospectus necessary to permit sales of their 2001 Notes.
(b) In the event that (i) the Issuer Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or that the Exchange Offer may not be consummated by as soon as practicable after the last Exchange Offer Closing Deadline Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC, SEC or (ii) the Exchange Offer is not for any other reason consummated on within 210 days of the Exchange Offer Closing Deadline or (iii) with respect to any Holder of Registrable Securities (A) such Holder is prohibited by applicable law or SEC policy from participating in Date the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Securities acquired directly from the Issuer or one of its affiliates, then, upon such Holder’s written request, the Issuer Company shall use its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination or date or notice is given to the Issuer, as the case may be (the “Shelf Filing Obligation”, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC. In the event the Issuer is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuer shall use its reasonable best efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Holders after completion of the Exchange Offer. The Issuer Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective for a until the expiration of the period of one year referred to in Rule 144(k) with respect to the Registrable Securities or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstandingStatement. The Issuer Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as thereafter practicable. The Issuer Company agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Issuer Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof and each Holder shall pay all expenses of its counsel; PROVIDED, HOWEVER, that the Company will not be deemed to have become effective unless it has been declared effective by pay the SEC; provided, however, that, if, after it has been declared effectivereasonable fees and disbursements of one counsel for the Initial Purchasers, the offering Holders and any Participating Broker-Dealer (as defined below) with respect to each sale of Registrable Securities pursuant to a in connection with any Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, Statement; provided that such Registration Statement will counsel shall be deemed not to have become effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. In the event that (a) we do not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not declared effective on or prior to 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Deadline) (the “Effectiveness Deadline”), the annual interest rate on the Registrable Securities will be increased by 0.50% from the Exchange Offer Closing Deadline or the Effectiveness Deadline, as applicable, until the Exchange Offer is completed, in the case of an Exchange Offer, or the Shelf Registration Statement is declared effective designated by the SEC. The annual additional interest rate on the Registrable Securities will not at any time exceed 0.50% notwithstanding the Issuer’s failure to meet more than one of these requirements. If the Issuer requests Holders of Registrable Securities to provide the information as described in Section 3(q), the Registrable Securities held by Holders who do not deliver such information to the Issuer when so requested will not be entitled to any such increase in the interest rate. The additional interest payable on the Registrable Securities described in this clause (d) shall be payable on the regular interest payment dates for the Registrable SecuritiesRepresentative.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuer acknowledges that any failure by the Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuer’s obligations under Section 2(a) and Section 2(b) hereof.
Appears in 1 contract
