Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following: (i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; (ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is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 Agreement, except as otherwise specified herein; (iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and (v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall: (i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff. (b) (i) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. (e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof. (f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 4 contracts
Samples: Registration Rights Agreement (Sinclair Broadcast Group Inc), Registration Rights Agreement (Sinclair Broadcast Group Inc), Registration Rights Agreement (Sinclair Broadcast Group Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer offers to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall , (iii) commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to (iv) complete the Exchange Offer not later than 60 within 360 days after such effective datethe Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 shall not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not not, for any other reason completed on or before by the date that is 270 days after 360th calendar day following the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required is requested to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and time period referred to in Rule 144 under the Securities Act (ii) the date or any similar rule in force, but not Rule 144A), or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the period from the Closing Date to such earlier day, the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after 360th calendar day following the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day periodperiod thereafter, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the 360th calendar day following the Closing Date or (y) 90 120 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day periodperiod thereafter, in each case until the Shelf Registration Statement becomes effective or the second anniversary expiration of the Closing DateShelf Effectiveness Period, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following commencing on the 31st day in such date 12-month period that such Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable and by (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day periodperiod thereafter, up to a maximum of 1.00% per annum, and ending on such date that in each case until the Shelf Registration Statement has again become effective or effective, the Prospectus again becomes usableusable or the expiration of the Shelf Effectiveness Period, up to a maximum increase of 1.00% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 4 contracts
Samples: Registration Rights Agreement (Sba Communications Corp), Registration Rights Agreement (Sba Communications Corp), Registration Rights Agreement (Sba Communications Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 “each, an "Exchange Dates”Date");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 by 210 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds 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 that are or were ineligible to be exchanged in held by the Exchange OfferInitial Purchasers, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestnotice of such opinion of counsel is given to the Company, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof (or Initial Purchasers that are holders thereof in the case of a Shelf Registration Statement filed pursuant to clause (iii) of this sentence) and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”)Statement. The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 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 is automatically any court or other governmental or regulatory agency or body, such Registration Statement will be deemed not to have become effective upon filing with during the SEC as provided by Rule 462 under period of such interference until the offering of Registrable Securities Actpursuant to such Registration Statement may legally resume. In the event that either the Exchange Offer is not completed or the a Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 within 210 days after of the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.251.00% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableAct.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s 's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (Metaldyne Corp), Registration Rights Agreement (Norris Environmental Services Inc), Registration Rights Agreement (Trimas Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Operating Partnership shall use their its commercially reasonable best efforts to (ix) file or cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 90 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Operating Partnership shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall Operating Partnership will promptly (but no later than ten Business Days after such Registration Statement is declared effective) commence the Exchange Offer by mailing (or, to the extent permitted by law, publishing, filing or making available) the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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) (each, an “Exchange Date” and collectively, the “Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and outstanding, continue to accrue interest (but not any Additional Interest) and be subject to all terms and conditions specified in the Indenture, including transfer restrictions, but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Operating Partnership that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Operating Partnership and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as reasonably practicable after the last Exchange Date, the Company and the Guarantors Operating Partnership shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Operating Partnership and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Operating Partnership shall use their its commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff. Interest on each Exchange Security issued pursuant to the Exchange Offer will accrue from the last interest payment date on which interest was paid on the Securities surrendered on exchange therefor, or if no interest has been paid on the Securities, from the issue date of the Securities.
(b) (i) In the event that (i) the Company and the Guarantors determine Operating Partnership determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available available, that existing law or SEC interpretations are changed such that the Exchange Securities would not generally be freely transferable after the Exchange Offer without further registration under the Securities Act or the Exchange Offer may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, or (ii) in the event that the Exchange Offer Registration Statement is not for any other reason completed declared effective on or before prior to the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser the Exchange Offer has not been completed within 30 60 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange OfferRegistration Statement being declared effective, the Company and the Guarantors Operating Partnership shall use their its commercially reasonable best efforts to file or cause to be filed as soon as reasonably practicable after such determination, date or Shelf Request, as the case may bedetermination date, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event ; provided that the Company and the Guarantors are required no Holder will be entitled to file a have any Registrable Securities included in any Shelf Registration Statement pursuant Statement, or entitled to clause (iii) use the prospectus forming a part of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a such Shelf Registration Statement (which may be Statement, until such Holder shall have delivered a combined Registration Statement with completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Exchange Offer Registration StatementOperating Partnership as is contemplated by Section 3(b) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offerhereof. The Company and the Guarantors agree Operating Partnership agrees to use their its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and During the Guarantors Shelf Effectiveness Period, the Operating Partnership further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Operating Partnership for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree Operating Partnership agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly (other than documents to be incorporated by reference in a Shelf Registration Statement, Prospectus or Free Writing Prospectus) within a commercially reasonable time after its being used or filed with the SEC.
(c) The Company and the Guarantors Operating Partnership shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities (or in the event of a Registration Default under clauses (iii), (iv) or (v) of the definition thereof, the Registrable Securities entitled to be included in such Shelf Registration Statement) will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodperiod that such additional interest continues to accrue, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annumannum (“Additional Interest”). In Any amounts of Additional Interest due will be payable in cash on the event that same original interest payment date as the Company receives a Shelf Request pursuant to Section 2(b)(iii), and interest on the Shelf Securities is payable. A Registration Statement required Default ends when the Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer Registration Statement becomes effective, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodof the definition thereof, when the Exchange Offer is completed, (3) in each the case until of a Registration Default under clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (4) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers Dealer Manager and the Holders, the Company and the Guarantors acknowledge Operating Partnership acknowledges that any failure by the Company or the Guarantors Operating Partnership to comply with their its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Dealer Manager 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 Dealer Manager or any Holder may obtain such relief as may be required to specifically enforce the CompanyOperating Partnership’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (Mid-America Apartments, L.P.), Registration Rights Agreement (Mid-America Apartments, L.P.), Registration Rights Agreement (Mid-America Apartments, L.P.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Republic shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement become and remain effective until 180 120 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Republic shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors Republic shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 mailedmailed or made available) (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Republic that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Republic and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Republic shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Republic and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Republic shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine Republic determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Republic shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the Prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Republic as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are Republic is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Republic shall use their its reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree Republic agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier to occur of (i) one year after the initial effectiveness of date when the Shelf Registration Statement Securities cease to be Registrable Securities and (ii) one year following the date when all the Registrable Securities covered by the such Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement becomes effective (the “Shelf Effectiveness Period”). The Company and the Guarantors Republic further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement Schedule B or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree Republic agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Republic shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.75% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge Republic acknowledges that any failure by the Company or the Guarantors Republic to comply with their 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 CompanyRepublic’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof; provided, however, that the parties hereto agree that the additional interest provided for in this Section 2 is intended to constitute the sole remedy for monetary damages in connection with any Registration Default.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (Republic of Argentina), Registration Rights Agreement (Republic of Argentina), Registration Rights Agreement (Republic of Argentina)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange SecuritiesSecurities (which registration statement, for the avoidance of doubt, may provide for the registration of other securities of the Company and Guarantors), (ii) cause such Exchange Offer Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 (1) 30 days after such effective datedate (or if such 30th day is not a Business Day, the next succeeding Business Day) and (2) the Target Registration Date. The Company and the Guarantors shall commence the Exchange Offer by mailing in compliance with the applicable procedures of the depositary the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending delivering to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectiveeffective (which registration statement, for the avoidance of doubt, may provide for the registration of other securities of the Company and Guarantors). In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities registered thereunder cease to constitute Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities (or file on EXXXX) copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either neither the Exchange Offer is not has been completed or the Shelf Registration Statementnor, if required in lieu thereof pursuant to Section 2(b)(i) or 2(b)(ii) hereof, the Shelf Registration Statement has not become effective effective, on or prior to the date that is 270 days after the Closing Target Registration Date (the such event, a “Target Registration DateDefault”), the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for from the first 90-day period immediately following date of such Registration Default to but excluding the Target earlier of the date such Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer Default is completed cured or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up Securities cease to a maximum increase of 1.00% per annumbe Registrable Securities. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (xa) 240 days after the Closing Target Registration Date or (yb) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”)Request, then the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from such date to but excluding the earlier of (i) the date on which such Shelf Additional Interest Date Registration Statement is declared effective and (ii) an the date that the Securities cease to be Registrable Securities. Notwithstanding the foregoing, (1) the Company and the Guarantors shall in no event be required to pay additional interest in excess of 0.25% per annum even if more than one Registration Default exists at any given time and (2) a Holder of Securities who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to additional interest with respect to each subsequent 90-day period, in each case until the a Registration Default that pertains to such Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumStatement. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the annual interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (that the Shelf Registration Statement ceases to be effective or the 61st day with respect Prospectus ceases to any suspension in accordance with Section 3(dbe usable to but excluding the earlier of (i) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableusable and (ii) the date that the Shelf Effectiveness Period ends; provided that if the failure of the Shelf Registration Statement to be effective or the Prospectus to be usable is otherwise permitted by this Agreement, then the increase in interest rate will only be effective if such failure to be effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period and such increase will commence on the 31st day that such failure to be effective or usable exists in such 12-month period.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus“written communication” (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act, any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act or a prospectus satisfying the requirements of Section 10(a) of the Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule 431 under the Securities Act.
(g) The additional interest provided for above shall be payable at the same times, in the same manner and to the same persons as ordinary interest on the Registrable Securities.
Appears in 3 contracts
Samples: Registration Rights Agreement (Expedia Group, Inc.), Registration Rights Agreement (Expedia Group, Inc.), Registration Rights Agreement (Expedia Group, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuers and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until the earlier of such time as the Participating Broker-Dealers shall have disposed of the Registrable Securities and 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of either of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuers and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 Exchange Offer does not violate any applicable law or applicable interpretations of the Staff, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which would reasonably be expected to materially impair the ability of the Issuers to proceed with the Exchange Offer and (iii) all governmental approvals, if any, shall have been obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the consummation of the Exchange Offer.
(b) (i) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days one year after the Closing Date date hereof or (iii) upon receipt receipt, not later than 10 Business Days following the completion of the Exchange Offer, of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be (which shall be deemed to include, without limitation, such filing within 60 days after such determination, date or Shelf Request, as the case may be), a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company Issuers and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers from which it has received Shelf Requests after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) date that is two years following the date hereof or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably and timely requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such supplement or amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company Issuers 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i), 2(b)(ii) or 2(b)(ii2(b)(iii) hereof, has does not become effective on or prior to the date that is 270 days one year after the Closing Date date hereof (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of obligation to conduct the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and Exchange Offer and/or file the Shelf Registration Statement required terminates pursuant to be filed thereby has not become effective by the later of (xSection 2(f) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later datehereof, the “Shelf Additional Interest Date”)at which time, then in each case, the interest rate on the Registrable Securities shall revert to the original interest rate; provided that in no event will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an such additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of interest exceed 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.250.50% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become becomes effective or the Prospectus has again becomes become usable, at which time, the interest rate on the Registrable Securities shall revert to the original interest rate.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company Issuers or the Guarantors to comply with 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 Company’s Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company representsNotwithstanding the foregoing, warrants the obligation of the Issuers and covenants the Guarantors to effect the Exchange Offer and/or file a Shelf Registration Statement pursuant to Section 2(a) and 2(b) hereof shall terminate on the date that it (including its agents and representatives) will is two years following the date hereof if such Exchange Offer and/or filing a Shelf Registration Statement has not prepare, make, use, authorize, approve or refer occurred prior to any Free Writing Prospectussuch time.
Appears in 3 contracts
Samples: Registration Rights Agreement (Bz Intermediate Holdings LLC), Registration Rights Agreement (Boise Inc.), Registration Rights Agreement (Boise Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-DealersBroker Dealers and (iii) cause such Registration Statement to become effective at the earliest possible time under the Securities Act. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and authenticate; and
(iii) deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 450 days after the Closing Date Issue Date, or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement Issue Date and (ii) the date when all of the Registrable Securities covered by the are registered under such Shelf Registration Statement and have been sold resold pursuant to the Shelf Registration Statement it or pursuant to Securities Act Rule 144 (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company Issuers 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to before the date that is 270 450 days after the Closing Issue Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes does not become effective or prior to the second anniversary later of the Closing date that is 450 days after the Issue Date and the date that is 90 days after the Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to Section 2(b)(i) or 2(b)(ii) hereof (the “Target Registration Date”), up to a maximum increase of 1.00% per annum. In or, in the event that the Company receives Issuers receive a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days after the Closing Target Registration Date or (y) 90 days after delivery of the Shelf Request, in each such Shelf Request (such later date, the “Shelf Additional Interest Date”), then case the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from following the Shelf Additional Interest Target Registration Date and (ii) by an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumannum until the earliest of the Exchange Offer being completed, the Shelf Registration Statement, if required hereby, becoming effective and the date on which all Securities cease to be Registrable Securities. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 45 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) date of such default in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company Issuers or the Guarantors to comply with 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 Company’s Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) . The Company representsIssuers represent, warrants warrant and covenants that it covenant that, in connection with the Exchange Offer, none of them (including its their agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing ProspectusProspectus other than any written communication relating to or that contains solely the terms of the Exchange Offer and/or other information that was included in the Registration Statement.
Appears in 3 contracts
Samples: Registration Rights Agreement (Cedar Fair L P), Registration Rights Agreement (Cedar Fair L P), Registration Rights Agreement (Cedar Fair L P)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors Issuers shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective consummate the Exchange Offer no later than 360 days after the Closing Date and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case case, prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuers and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 within 360 calendar days after following the Closing Date or Date, (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Securities on the Company date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of either Issuer within the meaning of the Securities Act) and so notifies (such notification or written request pursuant to the preceding clause (iii), a “Shelf Request”) the Issuers within 30 days after such Holder first becomes aware of such restrictions, the Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause clauses (iii) or (iv) of the preceding sentence, the Company Issuers and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers or such Holder after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their reasonable best efforts (i) to file the Shelf Registration Statement as promptly as practicable but in any event by the 30th day after they become obligated to make the filing, (ii) to cause the registration statement to become effective within 60 days after such filing and (iii) to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement and (ii) the date Closing Date or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company Issuers 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days 360th calendar day after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days the 360th calendar day after the Closing Date or (y) 90 days after delivery of the obligation to file such Shelf Request Registration arises pursuant to Section 2(b) (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90 day period commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, period up to a maximum of 1.00% per annum, annum and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or the Guarantors Issuers to comply with 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 Company’s Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (Atlas Pipeline Partners Lp), Registration Rights Agreement (Atlas Pipeline Partners Lp), Registration Rights Agreement (Atlas Pipeline Partners Lp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations interpretation of the staff of the SEC (the “Staff”), the Company and the Guarantors Issuer shall use their its reasonable best efforts to (i) cause to be filed and cause to become effective an Exchange Offer Registration Statement covering an the offer by the Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement Securities and to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is has been declared effective by the SEC SEC, and use their its reasonable best efforts to complete have the Exchange Offer not later than 60 consummated on or prior to the date that is 390 days after such effective datefollowing the issuance of the Securities (the “Exchange Offer Closing Deadline”). The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related Prospectus, appropriate letters of transmittal exchange offer Prospectus and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially including statements to the followingeffect that:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not properly validly 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 interest, but will not retain any rights under pursuant to Section 2(a) of this Registration Rights Agreement, except as otherwise specified herein;
(iv) that any Holder Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (Aa) surrender such Registrable Security, together with the appropriate enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case notice prior to the close of business on the last Exchange DateDate and (b) represent to the Issuer, as a condition to participation in the Exchange Offer, that (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder has no, and will not have, any arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Securities 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) such Holder is not an Affiliate of the Issuer. If the Holder is a Broker-Dealer that will receive Exchange 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 Securities 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 Securities 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 Securities Act; and
(v) that any Holder Holders will be entitled to withdraw its their election, not later than the close of business on the last Exchange Date, by (A) 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 its his election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securitiesexchanged. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuer and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, an Exchange Securities Security equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors Issuer shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or any applicable interpretations interpretation of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine 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 completed as soon as practicable after consummated by the last Exchange Date Offer Closing Deadline because it would violate any applicable law or the applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before consummated by the date that is 270 days after the Exchange Offer Closing Date Deadline or (iii) upon receipt with respect to any Holder of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are (A) such Holder is prohibited by applicable law or were ineligible to be exchanged SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Company Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Guarantors 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 their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestnotice is given to the Issuer, as the case may bebe (the “Shelf Filing Obligation”), a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are Issuer is required to file a Shelf Registration Statement pursuant solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Issuer shall use their its reasonable best efforts to file and have become 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 Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree Issuer agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier for a period of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the 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 (the “Shelf Effectiveness Period”)or are no longer outstanding. The Company and the Guarantors Issuer further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuer for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree Issuer agrees to furnish to the Holders each Holder of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, to the extent requested by any such Holder.
(c) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or Section 2(b) hereof). Each Holder shall pay all underwriting discounts and commissionsdiscounts, 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 is automatically any other governmental agency or court, such Registration Statement will be deemed not to have been declared effective upon filing with until the SEC as provided by Rule 462 under the offering of Registrable Securities Actpursuant to such Registration Statement may legally resume. In the event that either (a) the Issuer does not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become declared effective on or prior to the date that is 270 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Date Deadline) (the each such event referred to in clause (a) and (b) a “Target Registration DateDefault”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for during the first 90-day period immediately following the occurrence of any Registration Default, and such date and increased rate will further increase by an additional 0.25% per annum with respect to each subsequent 90-beginning on the 91st day periodfollowing the occurrence of such Registration Default, up to a maximum of 1.00but in no event shall such increases (such amounts “Additional Interest”) exceed in the aggregate 0.50% per annumannum regardless of the number of Registration Defaults that have occurred and are continuing. Following the cure of all Registration Defaults, and ending the interest rate on the Registrable Securities will be reduced to the original interest rate; provided, however, that, if after any such date that reduction in interest rate, a different Registration Default occurs, the Shelf Registration Statement has interest rate on the Registrable Securities shall again become effective or be increased pursuant to the Prospectus again becomes usableforegoing provisions. 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 Additional Interest. Additional Interest 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 Company and the Guarantors acknowledge Issuer acknowledges that any failure by the Company or the Guarantors Issuer to comply with their 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 CompanyIssuer’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (DPL Inc), Registration Rights Agreement (Dayton Power & Light Co), Registration Rights Agreement (DPL Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company shall prepare and the Guarantors shall use their its commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 90 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing or otherwise transmitting, in compliance with the applicable procedures of the depositary for such Registrable Security, the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates period 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case on or prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their its commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it hereof would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, determination a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and receives a written request (a “Shelf Request”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentenceExchange Offer, the Company and the Guarantors shall use their its commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 such Initial Purchasers Purchaser after completion of the Exchange Offer; provided that no Initial Purchaser will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Initial Purchaser shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Initial Purchaser to the Company as is contemplated by Section 3(b) hereof. The Company and the Guarantors agree agrees to use their its commercially reasonable best efforts to keep the Shelf Registration Statement Statement, if required, continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (iix) the date when all the Securities cease to be Registrable Securities covered by and (y) two years after the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement date hereof (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Participating Holder, and to use their its commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicablepracticable subject to Section 3(d) below. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 Exchange Offer Registration Statement and the Shelf Registration Statement.
(d) An Exchange Offer If a Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request annum (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by referred to in clauses (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect above, “Additional Interest”). A Registration Default ends when the Securities cease to each subsequent 90-day periodbe Registrable Securities or, if earlier, (1) in each the case until of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting It is acknowledged that the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their obligations under interest rate increase set forth in Section 2(a) and Section 2(b2(d) hereof may result in material irreparable injury to is the Initial Purchasers or the Holders sole remedy 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofdefault hereunder.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (Frontier Communications Corp), Registration Rights Agreement (Frontier Communications Corp), Registration Rights Agreement (Frontier Communications Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 90 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates period of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailedmailed or made available) (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case on or prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as reasonably practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject For the avoidance of doubt, notwithstanding any provision herein purporting to require physical mailing, delivery or acceptance of any conditionsdocument or instrument, other than that the Company and the Guarantors may conduct the Exchange Offer does not violate any applicable law or applicable interpretations exclusively through the automated tender offer program of the StaffDepository Trust Company or any successor or similar system permitting electronic transmittal, tender and acceptance of documents and instruments, provided that this provision shall apply only to Registrable Securities held in the form of beneficial interests in a global note deposited with (or held by a custodian for) the Depository Trust Company.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it hereof would violate any applicable law or applicable interpretations of the Staff, Staff or (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as reasonably practicable after such determination, date determination or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iiiii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement Statement, if required, continuously effective until the earlier earliest of (ix) the date the Securities cease to be Registrable Securities, (y) one year after the initial effectiveness of the Shelf Registration Statement date hereof and (iiz) the date when all Holders, other than Holders that are “affiliates” (as defined in Rule 144) of the Registrable Company, are able to sell such Securities covered by without restriction, and without reliance as to the Shelf Registration Statement have been sold availability of current public information, pursuant to Rule 144 promulgated under the Shelf Registration Statement Securities Act (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicablereasonably practicable subject to Section 3(d) below. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 If a Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing Default occurs with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior respect to the date that is 270 days after the Closing Date (the “Target Registration Date”)Registrable Securities of a Series, the interest rate on the Registrable Securities of such Series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request annum (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by referred to in clauses (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum above, “Additional Interest”); provided that in no event shall Additional Interest accrue after the Shelf Effectiveness Period. A Registration Default, with respect to each subsequent 90-day periodthe Registrable Securities of a Series, ends when the Securities of such Series cease to be Registrable Securities or, if earlier, (1) in each the case until of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. The Representatives acknowledge and agree that the Company and the Guarantors will not be required to pay Additional Interest hereunder once the Securities become freely tradeable under Rule 144 promulgated under the Securities Act.
(e) Without limiting It is acknowledged that the remedies available to interest rate increase set forth above is the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that sole remedy for any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofdefault hereunder.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 3 contracts
Samples: Registration Rights Agreement (Mylan N.V.), Registration Rights Agreement (Mylan N.V.), Registration Rights Agreement (Mylan N.V.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by December 1, 2007 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective, provided, however, that nothing in this section 2(b) shall require the effectiveness of a Shelf Registration Statement prior to the Target Registration Date. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date December 1, 2007 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum total increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date December 1, 2007 or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum total increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following commencing on the 31st day in such date 12-month period and by an additional 0.25% per annum with respect to for each subsequent 90-day period, period up to a maximum total additional rate of 1.00% per annum, and ending on annum until such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Mosaic Co), Registration Rights Agreement (Mosaic Co)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) to cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after at the last Exchange Date for use by one or more Participating Broker-Dealersearliest possible time under the Securities Act. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 270 days after such effective datethe Issue Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;; and
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and and
(iii) deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days 270th day after the Closing Date Issue Date, (iii) upon receipt of a Holders’ request, with respect to any Holder of Registrable Securities that (A) is prohibited by applicable law or SEC policy from participating in the Exchange Offer, (B) 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 (iiiC) is a broker-dealer and holds Securities acquired directly from the Company or one of its affiliates or (iv) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable (but in any event no later than the 30th day) after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such have-such-Shelf Registration Statement become effectiveeffective within 60 days after such filing. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iiiiv) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and or (ii) the date when all of the Registrable Securities covered by the are registered under such Shelf Registration Statement have been sold and resold pursuant to the Shelf Registration Statement it (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i), 2(b)(ii) or 2(b)(ii2(b)(iii) hereof, has does not become effective on or prior to the date that is 270 days 270th day after the Closing Issue Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day 90 days period immediately following the Target Registration Date and (ii) by an additional 0.25% per annum with respect to each subsequent 90-90 day period, in each case up to a maximum of 1.00% per annum, until the earliest of the Exchange Offer is completed or being completed, the Shelf Registration Statement, if required hereby, becomes becoming effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf date on which all Securities cease to be Registrable Securities. If the Exchange Offer Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) date of such default in such 12-month period for the first 90-90 day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-90 day period, up to a maximum of 1.00% per annum, annum and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) . The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing ProspectusProspectus other than any written communication relating to or that contains solely the terms of the Exchange Offer and/or other information that was included in the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Atp Oil & Gas Corp), Purchase Agreement (Atp Oil & Gas Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer for Registrable Securities by mailing mailing, or delivering in compliance with the applicable procedures of the Depositary and applicable law the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange of Securities (which shall be a period of at least 20 Business Days from the date such notice is maileddisseminated) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecurityDepositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable SecuritiesDepositary. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer Holder representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company shall be under no obligation to file any such Shelf Registration Statement before the Target Registration Date. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Participating Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the a Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case thereafter until the applicable Exchange Offer is completed or completed, the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annumSecurities Act. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days after the Closing Target Registration Date or and (y) 90 days after the delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from following the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case thereafter until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annumSecurities Act. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usableusable for resales of Registrable Securities, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable for resales of Registrable Securities exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 90 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company or its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and or 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (CDK Global, Inc.), Registration Rights Agreement (CDK Global, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-DealersDealers until the earlier of (1) 180 days after the last Exchange Date and (2) such time that the Participating Broker-Dealers have sold all Exchange Securities held by them. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (iA) one year after two years from the initial date of effectiveness of the such Shelf Registration Statement Statement, and (iiB) the date when all on which the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (ResCare Finance, Inc.), Purchase Agreement (ResCare Finance, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement become effective and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective dateSEC. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal otherwise in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” affiliate (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and Guarantor, (iv) if such Holder is not a broker-dealer, it is not engaged in and does not intend to engage in the distribution of the Exchange Securities, (v) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesSecurities and (vi) it is not acting on behalf of any Person that could not truthfully make the representations set forth in clauses (i) to (v) of this paragraph. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the Prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) above 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Subject to the Company’s and the Guarantors’ right to temporarily suspend a Registration Statement in Section 3(d) below, the Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 or the Exchange Offer Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii2(b) hereof, has not become effective on or prior to before the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing DateAct, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 90 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following commencing on the 91st day in such date 12-month period and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annumin each case, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable, up to a maximum increase of 1.00% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Deluxe Corp), Registration Rights Agreement (Deluxe Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, (x) the Company and the any Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed file with the SEC an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) Securities and cause such Registration Statement to become effective and (iiiy) have to facilitate the use of such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers, the Company and any Guarantors shall use their commercially reasonable efforts to cause such Registration Statement to remain effective until the earlier of (i) 180 days after such Registration Statement becomes effective and (ii) the date on which a Participating Broker-Dealer is not required to deliver the Prospectus in connection with resales of Exchange Securities. The Company and the any Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective dateby the Target Registration Date. The Company and the any Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As In addition to any other conditions that, in the Company’s judgment, are necessary to comply with the applicable laws, rules or regulations or comments of the SEC, as a condition to participating in the Exchange Offer, a Holder will be required to represent to and warrant to, and agree with, the Company and the any Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate engage in, and it is not engaged in and does not intend to engage in, the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by applicable law, make available available) a Prospectus to purchasers) purchasers in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the any Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the any Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 (A) the Exchange Offer does not not, in the judgment of the Company, violate any applicable law or applicable interpretations of the Staff, (B) no action or proceeding shall have been instituted or threatened by any governmental agency or other person or entity and no material adverse development shall have occurred in any existing action or proceeding with respect to the Company and its Subsidiaries which, in either case, in the Company’s judgment, might materially impair the Company’s ability to proceed with the Exchange Offer and (C) all governmental consents and approvals that, in the Company’s judgment, are necessary in connection with the Exchange Offer shall have been obtained and shall be in full force and effect.
(b) (i) In the event that (i) the Company and the Guarantors determine determines, in its judgment, that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the any Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable on or prior to that date that is 90 days after such determination, date or Shelf Request, as the case may be, Target Registration Date a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have cause such Shelf Registration Statement to become effectiveeffective under the Securities Act; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the any Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the any Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the any Guarantors agree to shall use their commercially reasonable best efforts to keep the such Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement effective, supplemented and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if amended as required by the rules, regulations or instructions applicable provisions of Section 3 hereof (A) to the registration form used by the Company extent necessary to ensure that it is available for resales of Registrable Securities registered pursuant to such Shelf Registration Statement or by the Holders of such Registrable Securities entitled to the benefit of this Section 2(b), (B) to ensure that it conforms with the requirements of this Agreement, the Securities Act or by any other and the policies, rules and regulations thereunder or of the SEC as announced from time to time, and (C) if reasonably requested by a Holder of Registrable Securities with respect to information relating to regarding such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and for a period that ends upon the earliest of (i) one year from the date on which such Shelf Registration Statement and Prospectus becomes effective under the Securities Act, (ii) when all the Registrable Securities covered by such Shelf Registration Statement have been sold pursuant to become usable as soon as thereafter practicable. The Company and such Shelf Registration Statement or cease to be Registrable Securities or (iii) the Guarantors agree to furnish to date when the Holders of such Registrable Securities, other than Holders that are “affiliates” (as defined in Rule 144 under the Securities Act) of the Company or any Guarantors, are able to sell such Registrable Securities copies without restriction, and without reliance as to the availability of current public information, pursuant to Rule 144 under the Securities Act or any successor rule thereto; provided that the Company and any Guarantors may delay the initial filing or suspend the effectiveness of any Shelf Registration Statement (and suspend the use of the Prospectus that is part of such supplement Shelf Registration Statement) for a period of up to 60 days in any three-month period, not to exceed 90 days in any calendar year, if the Company or amendment promptly after its being used any Guarantors determine in good faith that the initial filing or filed continuing effectiveness of such Shelf Registration Statement, the use of the related Prospectus or the offering or sale of any Securities pursuant to such Shelf Registration Statement would, in the reasonable opinion of the Company, require premature disclosure of material, non-public information that could reasonably be expected to adversely affect the Company or any Guarantors or a financing, acquisition, merger or other material transaction to which the Company or any subsidiary of the Company or any controlled affiliate of the Company is a party or has under consideration, or such action is otherwise required, in the reasonable opinion of the Company, by law, rule or regulation. For the avoidance of doubt, any such suspension by the Company in accordance with the SECforegoing proviso shall not constitute a Registration Default.
(c) The Company and the any Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf .
(e) If a Registration StatementDefault occurs, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on (such interest, the 31st day “Additional Interest”) from and including the date such Registration Default occurs to, but excluding, the date such Registration Default has been cured or otherwise ceases to exist. A Registration Default is cured or otherwise ceases to exist when the Securities cease to be Registrable Securities or, if earlier, (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof1) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day periodcase of a Registration Default under clause (i) of the definition thereof, up to when the Exchange Offer is completed, (2) in the case of a maximum Registration Default under clause (ii) of 1.00% per annumthe definition thereof, and ending on such date that when the Shelf Registration Statement has again become becomes effective or (3) in the Prospectus case of a Registration Default under clause (iii) of the definition thereof, when the Shelf Registration Statement again becomes usable.
(e) Without limiting effective. If at any time more than one Registration Default has occurred and is continuing, then, until the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge next date that any failure by the Company or the Guarantors to comply with 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 failureRegistration Default, the Initial Purchasers increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and is cured or any Holder may obtain otherwise ceases to exist on such relief as may be required to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofnext date that there is no Registration Default.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Starwood Property Trust, Inc.), Registration Rights Agreement (Starwood Property Trust, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Teekay Corp), Purchase Agreement (Teekay Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuer and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company Issuer and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuer and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuer and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuer or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuer and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company Issuer and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuer and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company Issuer and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company Issuer and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Issuer as is contemplated by Section 3(b) hereof. In the event that the Company Issuer and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company Issuer and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company Issuer and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company Issuer and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuer for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company Issuer and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Issuer and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each the subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuer and the Guarantors acknowledge that any failure by the Company Issuer or the Guarantors to comply with 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 CompanyIssuer’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (National CineMedia, LLC), Registration Rights Agreement (National CineMedia, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer reasonably promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date (as defined herein) or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds 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 that are or were ineligible to be exchanged in originally purchased and still held by the Exchange OfferInitial Purchasers, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestnotice of such opinion of counsel is given to the Company, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. To the extent a Shelf Registration Statement is required to be filed pursuant to clause (ii) but the Exchange Offer is completed on a date later than the Target Registration Date, upon completion of the Exchange Offer the Company and the Guarantors will no longer be required to file, make effective or continue the effectiveness of the Shelf Registration Statement. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when the Exchange Offer has been consummated or all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably and timely requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 later of (i) June 17, 2004 and (ii) 60 days after the Closing Date release to the Company of the funds held in escrow pursuant to the Escrow Agreement (as defined in the Purchase Agreement) (the “"Target Registration Date”"), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum aggregate increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for 45 consecutive days or more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (46th or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up with further increases, subject to a maximum of 1.00% per annumannum of additional interest, in accordance with the schedule in the prior paragraph, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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, although any monetary damages will be limited to the amounts specified in Section 2(d) hereof, in the event of any such failure, the Initial Purchasers or any Holder may obtain such other relief as may be required to specifically enforce the Company’s 's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Berry Plastics Corp), Registration Rights Agreement (Berry Plastics Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities ActSecurities, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in the Exchange Offer in exchange for Registrable Securities that were acquired by such broker-dealer as a result of market-making or other trading activitiesactivities (a “Participating Broker-Dealer”), then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such HolderHolder provided that, except as may be otherwise required by the Indenture, in the case of any Registrable Securities held in global form by a depositary, authentication and delivery to such depositary of one or more Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC and (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations interpretation of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days 210th day after the Closing Date Date, or (iii) upon receipt of a written request (a “Shelf Request”) from if any Initial Purchaser within 30 days holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, and any such Initial Purchaser so requests in writing on or prior to the 60th day after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders (or, in the case of clause (iii), any requesting Initial Purchaser) thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. Notwithstanding the foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any such amendment thereto, to become effective for a period of up to 60 days, if (i) the Company determines in good faith that such Shelf Registration Statement, and any such amendment thereto, might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised or (ii) such Shelf Registration Statement, and any such amendment thereto, would otherwise require premature disclosure of non-public information that, in the Company’s judgment, exercised reasonably and in good faith, would have a material adverse effect on or otherwise be detrimental to the Company; provided, however, the Company may only exercise such right of delay or withholding of efforts other than for purposes of avoiding its obligations under this Agreement; provided further however, that the Company may not exercise such right of delay or withholding of efforts more frequently than two times in any 12-month period and the aggregate period of any such delays or withholdings shall not exceed 60 days in any such 12-month period. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness all of the Shelf Registration Statement and (iiRegistrable Securities covered thereby are eligible for resale under Rule 144(k) under the date Securities Act upon the expiration of the time period referred to in such rule or such earlier time when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities covered by any such Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 Exchange Offer Registration Statement or Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that (i) either the Exchange Offer is not completed or the a Shelf Registration Statement, if Statement required pursuant to under Section 2(b)(i(2)(b)(i) or 2(b)(ii(ii) hereof, has hereof is not become declared effective on or prior to the date that is 270 days 210th day after the Closing Date (the “Target Registration Date”) or (ii) a Shelf Registration Statement required under Section 2(b)(iii) hereof is not declared effective on or prior to the 60th day following the Filing Date (also a “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the applicable Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary Securities covered thereby are eligible for resale under Rule 144(k) under the Securities Act upon the expiration of the Closing Datetime period referred to in such rule; provided however, up to a maximum increase that in no event shall the aggregate amount of additional interest accruing under this paragraph exceed in the aggregate 1.00% per annum. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable. In no event shall the Company or Guarantors be obligated to pay additional interest under more than one provisions of this Section 2(d) at any one time. Upon the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (in the case of clauses (i) and (ii) of the second paragraph of this Section 2(d), as applicable) or the Shelf Registration Statement which had ceased to remain effective (in the case of the penultimate paragraph of this Section 2(d)), or the Securities become eligible for sale pursuant to Rule 144(k) under the Securities Act upon the expiration of the time period referred to in such rule (in the case of the second and third paragraphs of this Section 2(d)), additional interest on the Securities as a result of such provisions (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The No Holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration if such Holder shall have failed to furnish to the Company representsthe information with respect to such Holder and the proposed disposition specified in Items 507 and 508 (as applicable) of Regulation S-K under the Securities Act and any other applicable rules, warrants and covenants regulations or policies of the SEC for use in connection with any Shelf Registration or Prospectus included therein. No Holder of Registrable Securities shall be entitled to additional interest pursuant to Section 2(b) if such Holder shall have failed to provide all such information. Each selling Holder as to which a Shelf Registration is being effected agrees to furnish promptly to the Company additional information to be disclosed so that it (including its agents and representatives) will the information previously furnished to the Company by such Holder does not prepare, make, use, authorize, approve contain any untrue statement of a material fact or refer omit to any Free Writing Prospectusstate a material fact required to be stated therein or necessary to make the statement therein not misleading.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tenneco Inc), Registration Rights Agreement (Tenneco Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the outstanding Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement remain effective until 180 days after the last date the Exchange Date Offer Registration Statement became effective for use by one or more Participating Broker-Dealers. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not no later than 60 days after such effective datethe Target Registration Date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days (in accordance with the Exchange Act) from the date such notice is mailedmailed or made available) (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 exchange, such other information as may be reasonably required to identify the Securities to be withdrawn and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (iI) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (iiII) at the time of the commencement of the Exchange Offer it is not engaged in, and does not intend to engage in, and it has no arrangement or understanding with any Person to participate in in, the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iiiIII) it is not an “affiliate” (within the meaning of as defined in Rule 405 under the Securities Act) of the Company or the Guarantor or, if it is such an “affiliate,” such Holder will comply with the prospectus delivery requirements of the Securities Act to the extent applicable in connection with any Guarantor resale of the Exchange Securities and (ivIV) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-market making or other trading activities, then such Holder will deliver a Prospectus (orcomply with the prospectus delivery requirements of the Securities Act, to the extent permitted by lawapplicable, make available a Prospectus to purchasers) in connection with any resale of such the Exchange Securities. Each Holder hereby acknowledges and agrees that any broker-dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities obtained by such Holder in exchange for Registrable Securities acquired by such Holder directly from the Company. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities validly tendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and customary conditions relating to the delivery of Securities or other actions customarily taken by Holders participating in the Exchange Offer or the execution and delivery of customary documentation relating to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) a Holder participating in the event that the Exchange Offer is does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and notifies (a “Holder Notice”) the Company within 30 days after such Holder first becomes aware of such restrictions, (iii) the Exchange Offer, for any other reason reason, is not completed on or before by the date that is 270 days after the Closing Target Registration Date or (iiiiv) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed filed, as soon as practicable after such determinationdetermination date, date Holder Notice or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) or (iv) of the preceding sentence, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Purchasers, if any, after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier for a period of (i) one year after from the initial effectiveness effective date of the such Shelf Registration Statement and (ii) the date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant cease to the Shelf Registration Statement be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Holders of Registrable Securities registered on such Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 any Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed by the Target Registration Date or the Shelf Registration Statement, if required pursuant to Section Sections 2(b)(i) or 2(b)(ii2(b)(iii) hereof, has is not become effective on or prior to by the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date such date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum total increase of 1.000.50% per annum. In the event that the Company receives a Holder Notice or Shelf Request pursuant to Section 2(b)(iii)Sections 2(b)(ii) or 2(b)(iv) hereof, and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Target Registration Date or (y) 90 days after delivery of such Holder Notice or Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum total increase of 1.000.50% per annum. If the Shelf Registration Statement, if required hereby, has become is effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month periodperiod (the 60th such date, the “Trigger Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period immediately following such date the Trigger Date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum increase of 1.000.50% per annum, and ending on such date that the Shelf Registration Statement has is again become effective or the Prospectus again becomes usable. Such additional interest shall accrue as liquidated damages on the principal amount of the Exchange Securities or Registrable Securities, as the case may be.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or the Guarantors Guarantor to comply with 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 Company’s and the Guarantors’ Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kraft Heinz Co), Registration Rights Agreement (Kraft Heinz Co)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (ix) cause to be filed file an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the outstanding Registrable Securities for Exchange Securities, Securities and (iiy) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last date the Exchange Date Offer Registration Statement became effective for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not no later than 60 days after such effective datethe Target Registration Date. The Company and the Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange, except to the extent not permitted by law, applicable interpretations of the Staff or as otherwise contemplated in this Agreement;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days (in accordance with the Exchange Act) from the date such notice is mailedmailed or made available) (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, notice or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the institution as shall be set forth in the letter(s) of transmittal and in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (iI) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (iiII) at the time of the commencement of the Exchange Offer it is not engaged in, and does not intend to engage in, and it has no arrangement or understanding with any Person to participate in in, the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iiiIII) it is not an “affiliate” (within the meaning of as defined in Rule 405 under the Securities Act) of the Company or or, if it is such an “affiliate,” such Holder will comply with the prospectus delivery requirements of the Securities Act to the extent applicable in connection with any Guarantor resale of the Exchange Securities and (ivIV) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-market making or other trading activities, then such Holder will deliver a Prospectus (orcomply with the prospectus delivery requirements of the Securities Act, to the extent permitted by lawapplicable, make available a Prospectus to purchasers) in connection with any resale of such the Exchange Securities. Each Holder participating in the Exchange Offer shall be deemed to acknowledge and agree that any broker-dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Xxxxxxxx & Sterling dated July 2, 1993, and similar no-action letters and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of Exchange Securities obtained by such Holder in exchange for Registrable Securities acquired by such Holder directly from the Company. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange cause the Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; andOffer to be accepted for exchange;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause to be delivered to the Trustee to promptly authenticate and deliver to each Holder, for cancellation;
(iii) issue Exchange Securities equal in principal amount to the principal amount of the Registrable Securities validly tendered by such Holder; and
(iv) cause the Trustee to promptly authenticate and deliver to each Holder such Exchange Securities. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and customary conditions relating to the delivery of Securities or other actions customarily taken by Holders participating in the Exchange Offer or the execution and delivery of customary documentation relating to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) a Holder participating in the event that the Exchange Offer is does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and notifies (a “Holder Notice”) the Company within 30 days after such Holder first becomes aware of such restrictions, (iii) the Exchange Offer, for any other reason reason, is not completed on or before by the date that is 270 days after the Closing Target Registration Date or (iiiiv) upon receipt of the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed file, as soon as practicable after the date of such determination, date Holder Notice or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) or (iv) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have cause to become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Purchasers, if any, after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier for a period of (i) one year after from the initial effectiveness effective date of the such Shelf Registration Statement and (ii) the date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant cease to the Shelf Registration Statement be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities registered on such Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 any Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed by the Target Registration Date or the Shelf Registration Statement, if required pursuant to Section Sections 2(b)(i) or 2(b)(ii2(b)(iii) hereof, has is not become effective on or prior to by the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date such date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum total increase of 1.000.50% per annum. In the event that the Company receives a Holder Notice or Shelf Request pursuant to Section 2(b)(iii)Sections 2(b)(ii) or 2(b)(iv) hereof, and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Target Registration Date or (y) 90 days after delivery of such Holder Notice or Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum total increase of 1.000.50% per annum. If the Shelf Registration Statement, if required hereby, has become is effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month periodperiod (the 60th such date, the “Trigger Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period immediately following such date the Trigger Date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum increase of 1.000.50% per annum, and ending on such date that the Shelf Registration Statement has is again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure . Any additional interest payable by the Company or the Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury due to the Initial Purchasers or increases in annual interest rate described in this Agreement will be paid in accordance with and pursuant to the Holders for which there is no adequate terms of the Indenture. The additional interest referenced in this Section 2(d) shall be the sole 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 Company’s and the Guarantors’ obligations under Section 2(a(other than a Participating Broker-Dealer) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer with respect to any Free Writing ProspectusExchange Offer Registration and Shelf Registration and related matters provided for in this Agreement.
Appears in 2 contracts
Samples: Registration Rights Agreement (FirstEnergy Transmission, LLC), Registration Rights Agreement (FirstEnergy Transmission, LLC)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuers and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-DealersBroker Dealers and (iii) cause such Registration Statement to become effective at the earliest possible time under the Securities Act. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and authenticate; and
(iii) deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 360 days after the Closing Date Issue Date, or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company Issuers and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement Issue Date and (ii) the date when all of the Registrable Securities covered by the are registered under such Shelf Registration Statement and have been sold resold pursuant to the Shelf Registration Statement it or pursuant to Securities Act Rule 144 (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company Issuers 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to before the date that is 270 360 days after the Closing Issue Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes does not become effective or prior to the second anniversary later of the Closing date that is 360 days after the Issue Date and the date that is 90 days after the Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to Section 2(b)(i) or 2(b)(ii) hereof (the “Target Registration Date”), up to a maximum increase of 1.00% per annum. In or, in the event that the Company receives Issuers receive a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days after the Closing Target Registration Date or (y) 90 days after delivery of the Shelf Request, in each such Shelf Request (such later date, the “Shelf Additional Interest Date”), then case the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from following the Shelf Additional Interest Target Registration Date and (ii) by an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumannum until the earliest of the Exchange Offer being completed, the Shelf Registration Statement, if required hereby, becoming effective and the date on which all Securities cease to be Registrable Securities. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 45 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) date of such default in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company Issuers or the Guarantors to comply with 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 Company’s Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) . The Company representsIssuers represent, warrants warrant and covenants that it covenant that, in connection with the Exchange Offer, none of them (including its their agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing ProspectusProspectus other than any written communication relating to or that contains solely the terms of the Exchange Offer and/or other information that was included in the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cedar Fair L P), Registration Rights Agreement (Cedar Fair L P)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuers and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) Securities and use their commercially reasonable efforts to cause such Registration Statement to become be declared effective and (iii) have such Registration Statement remain effective until 180 days after by the last Exchange Date for use by one or more Participating Broker-DealersSEC. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after upon the Exchange Offer Registration Statement is being declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn prior to the last Exchange Date (as defined below) will be accepted for exchange;
(ii) the dates of acceptance for exchange (the latest of 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case case, prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor Guarantor, (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 (ivv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then that such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable Promptly after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn prior to the last Exchange Date 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 Company Issuers and the Guarantors and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuers and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) In the event that, with respect to the Securities (i) In the event that the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 within 365 calendar days after following the Closing Date or Date, (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer or (iv) in the case of any Holder that, prior to the last Exchange Date, validly tenders and does not properly withdraw exchange Securities in the Exchange Offer, such Holder does not receive Exchange Securities on any Exchange Date that may be sold without restriction under state and federal securities laws (other than due solely to the Company status of such Holder as an affiliate of the Issuers or any Guarantor within the meaning of the Securities Act) and so notifies (such notification or written request pursuant to the preceding clause (iii), a “Shelf Request”) the Issuers within 30 days after such Holder first becomes aware of such restrictions, the Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable promptly file, but in any event within 30 days after the date of such determination, determination or the date or of receipt of such Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and shall use their commercially reasonable efforts to have cause such Shelf Registration Statement to become effectiveeffective within 90 days after the date of such determination or the date of receipt of such Shelf Request. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause clauses (iii) or (iv) of the preceding sentence, the Company Issuers and the Guarantors shall file and use their commercially reasonable best efforts to file and have cause to become effective 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 Initial Purchasers or such Holder after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement and (ii) the date Closing Date or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicablepromptly thereafter. The Company Issuers 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 StatementSecurities.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days 365th calendar day after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days the 365th calendar day after the Closing Date or (y) 90 days after delivery of the obligation to file such Shelf Request Registration arises pursuant to Section 2(b) (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90 day period commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, period up to a maximum of 1.00% per annum, annum and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. Following the cure of all circumstances described in this section relating to any particular Registrable Securities, all additional interest shall cease to accrue; provided, however, that, if after additional interest shall have ceased to accrue, a different circumstance described in this section providing for the payment of additional interest occurs, additional interest shall again accrue pursuant to the foregoing provisions. All accrued additional interest shall be paid in the manner provided for the payment of interest on the Securities as set forth in the Indenture. Notwithstanding the foregoing, the amount of additional interest shall not increase if more than one circumstance described in this section has occurred and is continuing at the same time.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company or Issuers and/or the Guarantors to comply with 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 Company’s Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Rose Rock Midstream, L.P.), Registration Rights Agreement (Rose Rock Midstream, L.P.)
Registration Under the Securities Act. (a) 2.1 To the extent not prohibited by any applicable law or applicable interpretations of the Staffstaff of the SEC, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement use their reasonable best efforts to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective dateOctober 1, 2004. The Company and the Guarantors Guarantor may in their discretion accept tenders of Registrable Securities after the date that the Company consummates the Exchange Offer with respect to Registrable Securities tendered as of the date of such consummation, and for purposes of this Section 2.1, the Exchange Offer shall be deemed to have been timely consummated notwithstanding any such extension of the tender period. To the extent not conflicting with the Securities Act or the rules and regulations of the SEC, the Exchange Offer shall be conducted in accordance with the requirements of the Luxembourg Stock Exchange. The Company and the Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) 2.1.1 that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) 2.1.2 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) 2.1.3 that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will may not retain any rights under this Agreement, except as otherwise specified herein;
(iv) 2.1.4 that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New YorkYork (and if required by the Luxembourg Stock Exchange, Luxembourg)) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) 2.1.5 that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) Affiliate of the Company or any the Guarantor and (iv) if such Holder is a brokerParticipating Broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activitiesDealer, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause instruct the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or regulation or applicable interpretations of the Staffstaff of the SEC.
(b) (i) 2.2 In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) 2.1 above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or regulation or applicable interpretations of the Staffstaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by October 1, 2004 or (iii) upon receipt the Exchange Offer has been completed and in the opinion of a written request (a “Shelf Request”) from any counsel for the Initial Purchaser Purchasers delivered to the Company and the Guarantor within 30 60 days after the consummation of the Exchange Offer representing that it holds Offer, 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 that are or were ineligible to be exchanged in the Exchange OfferSecurities, the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestnotice of such opinion of counsel is given to the Company, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement pursuant solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) 2.1 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (Statement, provided that the “Shelf Effectiveness Period”)Company and the Guarantor shall have the right to suspend the disposition of Registrable Securities pursuant thereto in accordance with Section 3.16. The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Holders of Registrable Securities upon request copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) 2.3 The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or 2.1 and Section 2(b) 2.2 hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Brazilian Telecommunication CO Embratel), Registration Rights Agreement (Brazilian Telecommunication CO Embratel)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer for each series promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer for each series not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer for each series by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly 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, 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of such series equal in principal amount to the principal amount of the Registrable Securities of such series validly tendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer for Registrable Securities of a series may not be completed as soon as practicable after the last Exchange Date with respect to such Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date passage of the Target Registration Date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities of such series by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant Default occurs with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)a series of Registrable Securities, the interest rate on the Registrable Securities of such series will be increased by (i) 0.25% per annum for the first 90-day period immediately following beginning on, and including, the Target date of such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities of such series cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum of the definition thereof, when the Exchange Offer for such series is completed, (2) in the first 90-day period payable commencing from the Shelf Additional Interest Date and case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Amazon Com Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Guarantor shall commence the Exchange Offer for each series promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer for such series not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors Guarantor shall commence the Exchange Offer for each series by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly 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 each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any the Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of such series equal in principal amount to the principal amount of the Registrable Securities of such series tendered by such Holder. The Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the each Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the each Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer for Registrable Securities of a series may not be completed as soon as practicable after the last Exchange Date with respect to such Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the such Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of prior to the last Exchange Date with respect to such Exchange Offer, the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in the such Exchange Offer, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities of such series by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company and the Guarantor shall be under no obligation to file any such Shelf Registration Statement before they are obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof. In the event that the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant Default occurs with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)a series of Registrable Securities, the interest rate on the Registrable Securities of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that Securities of such series cease to be Registrable Securities or, if earlier, (1) in the Company receives case of a Shelf Request pursuant to Section 2(b)(iii)Registration Default under clause (i) or (ii) of the definition thereof, and when the Exchange Offer for such series is completed or when the Shelf Registration Statement required to be filed thereby has not become covering such Registrable Securities becomes effective by the later of (x) 240 days after the Closing Date or (y2) 90 days after delivery in the case of such Shelf Request a Registration Default under clause (such later dateiii) or clause (iv) of the definition thereof, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until when the Shelf Registration Statement again becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Anything herein to the contrary notwithstanding, if the applicable Exchange Offer is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender or withdrew, its Securities for Exchange Securities in such Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such Securities will no longer constitute Registrable Securities hereunder.
(e) The Company and the Guarantor shall be entitled to suspend their obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company, the Guarantor or either of their subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company or the Guarantor determines that such disclosure is not in the best interest of the Company, the Guarantor and their stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or the Guarantors Guarantor to comply with 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 Company’s and the Guarantors’ Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Marathon Petroleum Corp), Registration Rights Agreement (Marathon Oil Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company Issuers and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 90 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company Issuers and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or by December 30, 2002, (iii) any Holder is prohibited by law or the applicable interpretations of the staff of the SEC from participating in the Exchange Offer or does not receive Exchange Securities on the date of the exchange that may be sold without restriction under federal and state securities laws (other than due solely to the status of such holder as an affiliate of either Issuer), or (iv) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible to be exchanged in the Exchange OfferSecurities, the Company Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iiiiv) of the preceding sentence, the Company Issuers and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company Issuers 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)December 30, 2002, the interest rate on the Registrable Securities will be increased by (i) 0.251.00% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annumSecurities Act. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company Issuers or the Guarantors to comply with 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 Company’s Issuers's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Plains Resources Inc), Registration Rights Agreement (Plains Exploration & Production Co L P)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by April 1, 2007 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days after the Closing Date April 1, 2007 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annumannum of additional interest. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days after the Closing Date March 1, 2007 or (y) 90 days after the delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from immediately following the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annumannum of additional interest. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and in each case ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable, up to a maximum of 1.00% per annum of additional interest.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Service Corporation International), Registration Rights Agreement (Service Corporation International)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) above 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year date that is 365 days after the initial effectiveness date hereof (provided that such date shall be extended by the number of the Shelf Registration Statement and (iidays of any permitted extension pursuant to section 3(d) the date hereof) or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 365 days after the Closing Date date hereof (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annumannum of additional interest. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has hereby does not become effective by the later of (x) 240 the Target Registration Date and (y) the date that is 90 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from immediately following the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case case, until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annumannum of additional interest. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and in each case ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable, up to a maximum of 1.00% per annum of additional interest.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Service Corporation International), Registration Rights Agreement (Service Corporation International)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and and, if applicable, the Guarantors Guarantor shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement on the appropriate form under the Securities Act, as selected by the Company, covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become effective on or before the Target Registration Date, and, if requested by one or more Participating Broker-Dealers, remain effective until 180 days after the last Exchange Date for use by one or more such Participating Broker-Dealers. The Company and, if applicable, the Guarantor shall use their commercially reasonable efforts to commence and the Guarantors shall commence complete the Exchange Offer promptly for each series of Notes after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer but in any event not later than 60 days after such effective date. The Company and and, if applicable, the Guarantors Guarantor shall commence the Exchange Offer for each series by mailing and/or electronically delivering, or by causing the mailing and/or electronic delivery of, the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly 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 mailedmailed and/or electronically delivered) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor the Guarantor, (4) 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 (iv5) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and and, if applicable, the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of such series equal in principal amount to the principal amount of the Registrable Securities of such series tendered by such HolderHolder and accepted for exchange pursuant to such Exchange Offer; provided that if any of the Registrable Securities are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and and, if applicable, the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the each Exchange Offer as provided above and shall use reasonable best efforts to comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the each Exchange OfferOffer and any Shelf Registration pursuant to Section 2(b). The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the StaffStaff and that no action or proceeding has been instituted or threatened in any court or by or before any governmental agency relating to the Exchange Offer which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the Exchange Offer.
(b) (i) In the event that the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any under applicable law or if applicable interpretations of the Staff, (ii) in Staff do not permit the event that Company and the Guarantor to effect the Exchange Offer is not for Registrable Securities of a series, or, if for any other reason completed on or before the Company and the Guarantor do not consummate the Exchange Offer for Registrable Securities of a series by the later of the Target Registration Date and the date that is 270 days after the Closing Date or (iii) upon receipt of Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in the any such Exchange Offer, the Company and and, if applicable, the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed and become effective, as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement on the appropriate form under the Securities Act, as selected by the Company, providing for the sale of all the Registrable Securities of such series by the Holders thereof and to have such Shelf Registration Statement become effective. In ; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the event that prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof and, if necessary, the Shelf Registration Statement has been amended to reflect such information, and (b) the Company and the Guarantors are required Guarantor shall be under no obligation to file a or cause to become effective any such Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts before they are obligated to file and have or cause to become effective 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 Initial Purchasers after completion of the Exchange Offerhereof. The Company and and, if applicable, the Guarantors Guarantor agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and and, if applicable, the Guarantors Guarantor further agree to use their commercially reasonable efforts to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and and, if applicable, the Guarantors Guarantor agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as reasonably requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, its own attorney fees (except as such fees may be covered by clause (vii) of the definition of “Registration Expenses”), brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such HolderXxxxxx’s Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant Default occurs with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)a series of Registrable Securities, the interest rate on the Registrable Securities (and only the Registrable Securities) of such series will be increased by (i) 0.25% per annum for the first 90-90 day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In A Registration Default ends with respect to any Security when such Security ceases to be a Registrable Security or, if earlier, (1) in the event that case of a Registration Default under clause (i) or (ii) of the Company receives a Shelf Request pursuant to Section 2(b)(iii)definition thereof, and when the Exchange Offer for such series is completed or when the Shelf Registration Statement required to be filed thereby has not become covering such Registrable Securities becomes effective by the later of (x) 240 days after the Closing Date or (y2) 90 days after delivery in the case of such Shelf Request a Registration Default under clause (such later dateiii) of the definition thereof, when the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on the next date that there is no Registration Default. Notwithstanding anything to the contrary in this Agreement, if the applicable Exchange Offer with respect to a series of Registrable Securities is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, or withdrew, its Securities for Exchange Securities in such Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and upon the completion of such Exchange Offer, such Securities will no longer constitute Registrable Securities hereunder. Any amounts of additional interest due under this clause (d) will be payable in cash on the regular interest payment dates of the Notes. The additional interest will be determined by multiplying the applicable additional interest rate by the principal amount of the Notes, 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 composed of twelve 30-day months, but it being understood that if the regular interest payment date of the Notes is not a Business Day and the payment is made on the next succeeding Business Day, no further interest will accrue as a result of such delay), and the denominator of which is 360.
(e) The Company and the Guarantor shall be entitled to suspend their obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Company, the Guarantor or either of their subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company or the Guarantor determines that such disclosure is not in the best interest of the Company, the Guarantor and their stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or the Guarantors Guarantor to comply with 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 seek to specifically enforce the Company’s and the Guarantors’ Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
(f. The provisions for additional interest set forth in Section 2(d) The Company representsabove shall constitute liquidated damages and will be the exclusive remedy, warrants and covenants that it (including its agents and representatives) will not preparemonetary or otherwise, make, use, authorize, approve or refer available to Holders under this Agreement with respect to any Free Writing ProspectusRegistration Default.
Appears in 2 contracts
Samples: Registration Rights Agreement (Solventum Corp), Registration Rights Agreement (3m Co)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staffstaff of the SEC and except in the circumstances contemplated by Section 2(b)(i) below, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (i) cause to be filed with the SEC an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities Notes for Exchange SecuritiesNotes as soon as practicable following the Closing Date, (ii) cause such Exchange Offer Registration Statement to become effective under the Securities Act as soon as practicable following filing with the SEC, and (iii) have such Registration Statement remain effective until 180 the earlier of (A) 120 days after the last closing of the Exchange Date for use by one or more Offer and (B) such time as all Participating Broker-DealersDealers no longer own any Registrable Notes. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. For purposes of this Agreement, the Exchange Offer shall be deemed completed upon the earlier to occur of (i) the Company and the Guarantor having exchanged the Exchange Notes for all outstanding Registrable Notes (other than those held by Holders that are ineligible to participate in the Exchange Offer) pursuant to the Exchange Offer and (ii) the Company and the Guarantor having exchanged, pursuant to the Exchange Offer, Exchange Notes for all Registrable Notes that have been properly tendered and not withdrawn before the expiration of the Exchange Offer; provided, however, that the Company and the Guarantor may, in their discretion, accept tenders of Registrable Notes for Exchange Notes subsequent to the date the Company and the Guarantor consummate the Exchange Offer with respect to Registrable Notes tendered as of the date of initial consummation, and the Exchange Offer shall be deemed to have been consummated notwithstanding any such extension of the tender period. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities Notes validly tendered and not properly 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 Note not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable SecurityNote, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New YorkYork City) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) manner specified in the such notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i) any Exchange Securities Notes to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities Notes in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any the Guarantor and (iv) if such Holder is a broker-dealer dealer, that it will receive Exchange Securities Notes for its own account in exchange for Registrable Securities Notes that were acquired as a result of market-making or other trading activities, then such Holder and that it will deliver a Prospectus (ordeliver, to the extent permitted required by lawapplicable law or regulation or SEC pronouncement, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesNotes. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities Notes or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities Notes equal in principal amount to the principal amount of the Registrable Securities tendered Notes surrendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available permitted or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, or because the Exchange Notes received by Holders are not or would not be, upon receipt, transferable by each such holder without need for further compliance with Section 5 of the Securities Act (except for the requirement to deliver a Prospectus in connection with any resale by a Participating Broker-Dealer), (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by November 30, 2007 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that any of the Initial Purchasers shall so request in connection with any offering or sale of Registrable Notes initially purchased by it holds Registrable Securities that are or were ineligible pursuant to be exchanged in the Exchange OfferPurchase Agreement, the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities Notes by the Holders thereof and to have such Shelf Registration Statement become effectiveeffective under the Securities Act. In the event that If the Company and the Guarantors are Guarantor receive reasonable advance notice that they will be required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentenceparagraph, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become effective under the Securities Act 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Notes or such shorter period that will terminate when all the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantor for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities Notes with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor 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 Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any the registration pursuant to Section provided in Sections 2(a) or Section and 2(b) hereof). 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 Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. Any obligation to file with the SEC a Shelf Registration Statement pursuant to Section 2(b) hereof will be deemed to be satisfied if the Company has previously filed a registration statement with the SEC that may be used without limitation or restriction for the purposes contemplated by Section 2(b).
(e) In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has not become effective under the Securities Act on or prior to November 30, 2007 (December 31, 2007 solely in the date that is 270 days after the Closing Date (the “Target case of a Shelf Registration Date”Statement pursuant to Section 2(b)(iii) above), the interest rate on the Registrable Securities Notes will be increased by (i) 0.250.50% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes become effective under the Securities Act or the second anniversary of Notes become freely tradable under the Closing DateSecurities Act, up at which time the increased interest shall cease to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumaccrue. If the Shelf Registration Statement, if required hereby, Statement has become effective under the Securities Act and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month periodperiod (two suspensions not to exceed 30 days each in any 365-day period in the case of a Suspension described in Section 3), then the interest rate on the Registrable Securities Notes will be increased by 0.250.50% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective under the Securities Act or the Prospectus again becomes usable.
(e) Without limiting , at which time the remedies available increased interest shall cease to accrue; provided, however, that if the Initial Purchasers Prospectus ceases to be usable because audited financial statements are required to be filed with the SEC and incorporated by reference in the Holders, Shelf Registration Statement to comply with the undertaking of the Company and the Guarantors acknowledge that Guarantor pursuant to Item 512(a)(4) of Regulation S-K (or any failure by successor provision), such a suspension shall not be a suspension for purposes of the Company or the Guarantors to comply with their obligations under Section 2(a) foregoing provision unless 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofextent its duration exceeds 60 days.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Mobile Radio Dipsa), Registration Rights Agreement (Mobile Radio Dipsa)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing or electronically delivering, pursuant to procedures of the depositary, the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, such other information as may be reasonably required to identify the Securities to be withdrawn and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and Guarantor, (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesSecurities and (5) it is not acting on behalf of any person that could not truthfully make the representations set forth in clauses (1) to (4) of this paragraph. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and customary conditions relating to the delivery of Securities, the execution and delivery of customary documentation or other actions customarily taken by Holders participating in the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that the Company and the Guarantors shall not be required to file any such Shelf Registration Statement prior to the earlier of the filing of an Exchange Offer Registration Statement and the Target Registration Date; provided further that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until after such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kaiser Aluminum Corp), Registration Rights Agreement (Kaiser Aluminum Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until the lesser of 180 days after the last closing of the Exchange Date for use by one or more Offer and the date on which all Participating Broker-DealersDealers have sold all Exchange Securities held by them. The Company and the Guarantors shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) Affiliate of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. Notwithstanding the foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any such amendment thereto, to become effective for a period of up to 60 days, if the Company determines in good faith that such Shelf Registration Statement, and any such amendment thereto, might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised; provided, however, that the Company may not exercise such right of delay or withholding of efforts more frequently than two times in any 12-month period and the aggregate period of any such delays or withholdings shall not exceed 60 days in any such 12-month period. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(d)(1)(ii) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus“free-writing prospectus” (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act or any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Lamar Advertising Co/New), Registration Rights Agreement (Lamar Advertising Co/New)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed on or prior to July 6, 2010 an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by October 29, 2010 or (iii) upon receipt of a written request (a “Shelf Request”) within 20 days after the last Exchange Date from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date October 29, 2010 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum increase of 1.00% per annum. In the event that the Company receives a one or more Shelf Request Requests pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has does not become effective by the later of (x) 240 days after the Closing Date October 29, 2010 or (y) 90 days after the delivery of the last such Shelf Request (or, if the Shelf Registration Statement is reviewed by the SEC, 120 days after the delivery of such Shelf Request Request, provided that the Company shall use commercially reasonable efforts to cause the Shelf Registration Statement to become effective within 90 days after the delivery of such Shelf Request) (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day period, period in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (GeoEye, Inc.), Registration Rights Agreement (GeoEye, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities ActSecurities, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in the Exchange Offer in exchange for Registrable Securities that were acquired by such broker-dealer as a result of market-making or other trading activitiesactivities (a "Participating Broker-Dealer"), then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such HolderHolder provided that, except as may be otherwise required by the Indenture, in the case of any Registrable Securities held in global form by a depositary, authentication and delivery to such depositary of one or more Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC and (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations interpretation of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days 210th day after the Closing Date Date, or (iii) upon receipt of a written request (a “Shelf Request”) from if any Initial Purchaser within 30 days holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution, and any such Initial Purchaser so requests in writing on or prior to the 60th day after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders (or, in the case of clause (iii), any requesting Initial Purchaser) thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. Notwithstanding the foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any such amendment thereto, to become effective for a period of up to 60 days, if (i) the Company determines in good faith that such Shelf Registration Statement, and any such amendment thereto, might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised or (ii) such Shelf Registration Statement, and any such amendment thereto, would otherwise require premature disclosure of non-public information that, in the Company's judgment, exercised reasonably and in good faith, would have a material adverse effect on or otherwise be detrimental to the Company; provided, however, the Company may only exercise such right of delay or withholding of efforts other than for purposes of avoiding its obligations under this Agreement; provided further however, that the Company may not exercise such right of delay or withholding of efforts more frequently than two times in any 12-month period and the aggregate period of any such delays or withholdings shall not exceed 60 days in any such 12-month period. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness all of the Shelf Registration Statement and (iiRegistrable Securities covered thereby are eligible for resale under Rule 144(k) under the date Securities Act upon the expiration of the time period referred to in such rule or such earlier time when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities covered by any such Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Exchange Offer Registration Statement or Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that (i) either the Exchange Offer is not completed or the a Shelf Registration Statement, if Statement required pursuant to under Section 2(b)(i(2)(b)(i) or 2(b)(ii(ii) hereof, has hereof is not become declared effective on or prior to the date that is 270 days 210th day after the Closing Date (the “"Target Registration Date”") or (ii) a Shelf Registration Statement required under Section 2(b)(iii) hereof is not declared effective on or prior to the 60th day following the Filing Date (also a "Target Registration Date"), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the applicable Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary Securities covered thereby are eligible for resale under Rule 144(k) under the Securities Act upon the expiration of the Closing Datetime period referred to in such rule; provided however, up to a maximum increase that in no event shall the aggregate amount of additional interest accruing under this paragraph exceed in the aggregate 1.00% per annum. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable. In no event shall the Company or Guarantors be obligated to pay additional interest under more than one provisions of this Section 2(d) at any one time. Upon the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement (in the case of clauses (i) and (ii) of the second paragraph of this Section 2(d), as applicable) or the Shelf Registration Statement which had ceased to remain effective (in the case of the penultimate paragraph of this Section 2(d)), or the Securities become eligible for sale pursuant to Rule 144(k) under the Securities Act upon the expiration of the time period referred to in such rule (in the case of the second and third paragraphs of this Section 2(d)), additional interest on the Securities as a result of such provisions (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s 's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The No Holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration if such Holder shall have failed to furnish to the Company representsthe information with respect to such Holder and the proposed disposition specified in Items 507 and 508 (as applicable) of Regulation S-K under the Securities Act and any other applicable rules, warrants and covenants regulations or policies of the SEC for use in connection with any Shelf Registration or Prospectus included therein. No Holder of Registrable Securities shall be entitled to additional interest pursuant to Section 2(b) if such Holder shall have failed to provide all such information. Each selling Holder as to which a Shelf Registration is being effected agrees to furnish promptly to the Company additional information to be disclosed so that it (including its agents and representatives) will the information previously furnished to the Company by such Holder does not prepare, make, use, authorize, approve contain any untrue statement of a material fact or refer omit to any Free Writing Prospectusstate a material fact required to be stated therein or necessary to make the statement therein not misleading.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tenneco Automotive Inc), Registration Rights Agreement (Tenneco Automotive Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuers and the Guarantors shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement remain become effective until 180 days after under the last Exchange Date for use by one or more Participating Broker-DealersSecurities Act. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days 25 Business Days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates date of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, Act and (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv4) if such Holder it is not a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, the Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuers and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration and the Exchange Offer pursuant to Section 2(a) or Section 2(b) hereof. 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.
(dc) An Exchange Offer Registration Statement filed pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b.
(d) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either (i) the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to in accordance with and as provided in this Section 2(b)(i) or 2(b)(ii) hereof, has not become effective 2 on or prior to the date that is 270 Target Registration Date, the Issuers will pay the Initial Notes Holder liquidated damages in the form of additional interest in an amount equal to 0.50% per annum of the principal amount of Registrable Securities held by such Initial Notes Holder, with respect to the first 90 days after the Closing Target Registration Date (the “Target Registration Date”), the interest which rate on the Registrable Securities will shall be increased by (i) 0.25an additional 0.50% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodperiod that such liquidated damages continue to accrue), in each case until the Exchange Offer is completed or there are no Registrable Securities outstanding (after which such additional interest shall cease to accrue), provided, however, that at no time shall the Shelf Registration Statement, if required hereby, becomes effective or amount of liquidated damages accruing under this Section 2(d)(i) exceed in the second anniversary of the Closing Date, up to a maximum increase of aggregate 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date ; or (yii) 90 days after delivery the Exchange Securities offered during the Exchange Offer bear a CUSIP number that is different than the CUSIP number assigned to the Issuer’s existing 8.50% Senior Notes due 2021 that have been registered under the Securities Act and outstanding prior to the issuance of such Shelf Request (such later datethe Securities, the “Shelf Additional Interest Date”), then Issuers will pay the Initial Notes Holder liquidated damages in the form of additional interest rate on the Registrable Securities will be increased by (i) 0.25in an amount equal to 1.00% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase principal amount of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableSecurities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Enviva Partners, LP)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staffstaff of the SEC and except in the circumstances contemplated by Section 2(b)(i) below, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (i) cause to be filed with the SEC an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities Notes for Exchange SecuritiesNotes as soon as practicable following the filing of the Company’s annual report on Form 20-F for the year ended December 31, 2003, (ii) cause such Exchange Offer Registration Statement to become be declared effective by the SEC as soon as practicable following filing with the SEC, and (iii) have such Registration Statement remain effective until 180 the earlier of (A) 120 days after the last closing of the Exchange Date for use by one or more Offer and (B) such time as all Participating Broker-DealersDealers no longer own any Registrable Notes. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. For purposes of this Agreement, the Exchange Offer shall be deemed completed upon the earlier to occur of (i) the Company and the Guarantor having exchanged the Exchange Notes for all outstanding Registrable Notes (other than those held by Holders that are ineligible to participate in the Exchange Offer) pursuant to the Exchange Offer and (ii) the Company and the Guarantor having exchanged, pursuant to the Exchange Offer, Exchange Notes for all Registrable Notes that have been properly tendered and not withdrawn before the expiration of the Exchange Offer; provided, however, that the Company and the Guarantor may, in their discretion, accept tenders of Registrable Notes for Exchange Notes subsequent to the date the Company and the Guarantor consummate the Exchange Offer with respect to Registrable Notes tendered as of the date of initial consummation, and the Exchange Offer shall be deemed to have been consummated notwithstanding any such extension of the tender period. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities Notes validly tendered and not properly 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 Note not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable SecurityNote, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New YorkYork City) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) manner specified in the such notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i) any Exchange Securities Notes to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities Notes in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any the Guarantor and (iv) if such Holder is a broker-dealer dealer, that it will receive Exchange Securities Notes for its own account in exchange for Registrable Securities Notes that were acquired as a result of market-making or other trading activities, then such Holder and that it will deliver a Prospectus (ordeliver, to the extent permitted required by lawapplicable law or regulation or SEC pronouncement, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesNotes. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities Notes or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities Notes equal in principal amount to the principal amount of the Registrable Securities tendered Notes surrendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available permitted or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, or because the Exchange Notes received by Holders are not or would not be, upon receipt, transferable by each such holder without need for further compliance with Section 5 of the Securities Act (except for the requirement to deliver a Prospectus in connection with any resale by a Participating Broker-Dealer), (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by October 31, 2004 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that any Initial Purchaser shall so request in connection with any offering or sale of Registrable Notes initially purchased by it holds Registrable Securities that are or were ineligible pursuant to be exchanged in the Exchange OfferPurchase Agreement, the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities Notes by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that If the Company and the Guarantors are Guarantor receive reasonable advance notice that they will be required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentenceparagraph, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Notes or such shorter period that will terminate when all the Registrable Securities Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantor for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities Notes with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor 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 Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any the registration pursuant to Section provided in Sections 2(a) or Section and 2(b) hereof). 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 Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective by the SEC on or prior to October 31, 2004 (November 30, 2004 solely in the date that is 270 days after the Closing Date (the “Target case of a Shelf Registration Date”Statement pursuant to Section 2(b)(iii) above), the interest rate on the Registrable Securities Notes will be increased by (i) 0.250.50% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary of Notes become freely tradable under the Closing DateSecurities Act, up at which time the increased interest shall cease to a maximum increase of 1.00% per annumaccrue. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective by the SEC and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month periodperiod (two suspensions not to exceed 30 days each in any 365-day period in the case of a Suspension described in Section 3), then the interest rate on the Registrable Securities Notes will be increased by 0.250.50% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting , at which time the remedies available increased interest shall cease to accrue; provided, however, that if the Initial Purchasers Prospectus ceases to be usable because audited financial statements are required to be filed with the SEC and incorporated by reference in the Holders, Shelf Registration Statement to comply with the undertaking of the Company and the Guarantors acknowledge that Guarantor pursuant to Item 512(a)(4) of Regulation S-K (or any failure by successor provision), such a suspension shall not be a suspension for purposes of the Company or the Guarantors to comply with their obligations under Section 2(a) foregoing provision unless 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofextent its duration exceeds 60 days.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (America Movil Sa De Cv/), Registration Rights Agreement (Mobile Radio Dipsa)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof; provided, further, that no Initial Purchaser will be entitled to make a Shelf Request prior to November 14, 2018, and no Initial Purchaser shall request that a Shelf Registration Statement be declared effective prior to that time that the Exchange Offer is required to be commenced in accordance with the terms of this Agreement. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (AV Homes, Inc.)
Registration Under the Securities Act. (a) To If the Escrowed Funds are released to fund the Transactions in accordance with Section 4(a) and 4(b) of the Escrow Agreement (the date of such release, the “Release Date”), to the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Frontier shall use their its reasonable best efforts to (i) cause to be filed within 90 days of the Release Date an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Frontier shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors Frontier shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittaltransmittal and related documents, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Frontier that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Frontier and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Frontier shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Frontier and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Frontier shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that the Company and the Guarantors determine (i) Frontier determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Frontier shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are Frontier is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Frontier shall use their its reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree Frontier agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness date all of the Shelf Registration Statement Securities cease to be Registrable Securities and (ii) the date expiration of the period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Frontier further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Frontier for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree Frontier agrees to furnish to the Holders of Registrable Securities (or file on XXXXX) copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Frontier shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company Frontier receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days the date that is five months after the Closing Release Date or and (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an (ii)an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum increase of 1.00% per annum, commencing on the 31st day in such 12-month period and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable, as the case may be.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge Frontier acknowledges that any failure by the Company or the Guarantors Frontier to comply with their 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 CompanyFrontier’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company Frontier represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Frontier Communications Corp), Registration Rights Agreement (Frontier Communications Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed file an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer for Registrable Securities by mailing mailing, or delivering in compliance with the applicable procedures of the Depositary and applicable law the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange of Securities (which shall be a period of at least 20 Business Days (or such longer period as required by applicable law) from the date such notice is maileddisseminated) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecurityDepositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable SecuritiesDepositary. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer Holder representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company shall be under no obligation to file any such Shelf Registration Statement before the Target Registration Date. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Participating Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the a Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case thereafter until the applicable Exchange Offer is completed or completed, the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annum. In the Securities Act; provided that in no event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then should the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00more than 0.50% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Periodusable on more than two occasions, and such failure failures to remain effective or be usable exists continue for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 consecutive days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or after the 61st 30th day with respect to any suspension in accordance with Section 3(d) hereof) in of the second such 1230-month period for the first 90consecutive-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable; provided that in no event shall the interest rate be increased by more than 0.50% per annum.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company or its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and or 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Newmark Group, Inc.), Registration Rights Agreement (BGC Partners, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors Issuers shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement by April 19, 2006 covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Exchange Offer Registration Statement to become be declared effective and (iii) have such Registration Statement remain effective until 180 days after under the last Exchange Date for use Securities Act by one or more Participating Broker-DealersJuly 18, 2006. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective dateAugust 17, 2006. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Issuers that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors Issuers shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable of a change in law or applicable interpretations SEC policy after the issue date of the StaffRegistrable Securities, (ii) in the event that for any reason the Exchange Offer is not for any other reason completed consummated by August 17, 2006, or if such day is not a Business Day, on or before prior to the date that is 270 days after the Closing Date or first Business Day thereafter, (iii) upon receipt completion of a written request (a “Shelf Request”) from the Exchange Offer any Initial Purchaser within 30 days after shall so request in connection with any offering or sale of Registrable Securities, or (iv) any Holder notifies us following the consummation of the Exchange Offer representing that (A) it is not permitted under law or SEC policy to participate in the Exchange Offer; (B) it cannot publicly resell exchange Registrable Securities without delivering a Prospectus, and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for resales by that Holder or (C) it is a broker-dealer and holds Registrable Securities that are it has not exchanged and that it acquired directly from us or were ineligible one of our affiliates, then in addition to be exchanged or in lieu of conducting the Exchange Offer, the Company Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, file a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors Issuers are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Issuers shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Issuers agree to use their reasonable best efforts (i) to file the Shelf Registration Statement by the 30th day after they become obligated to make the filing, (ii) to cause the registration statement to become effective within 60 days after such filing and (iii) to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company Issuers 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 Company and the Guarantors Issuers shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either (i) the Exchange Offer is not completed or completed, (ii) the Shelf Registration Statement, if required pursuant hereby, is not declared effective, (iii) the Exchange Offer Registration Statement is not filed, (iv) the Exchange Offer Registration Statement is not effective, (v) the Shelf Registration Statement is not filed or (vi) the Exchange Offer Registration Statement or the Shelf Registration Statement is declared effective, but thereafter, subject to Section 2(b)(icertain exceptions, ceases to be effective or usable in connection with the Exchange Offer or resales of any Registrable Securities registered under the Shelf Registration Statement (each such event referred to in clauses (i) or 2(b)(iithrough (vi) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the a “Target Registration DateDefault”), by within the time limits set forth in Sections 2(a) and 2(b) above, as applicable, additional interest rate in the form of additional cash interest (“Additional Interest”) will accrue on the Registrable Securities Notes required to be registered on a Shelf Registration. The rate of Additional Interest will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target occurrence of a Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodDefault, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and increasing by an additional 0.25% per annum with respect to each subsequent 90-day period, period up to a maximum amount of Additional Interest of 1.00% per annum, from and ending including the date on which any such Registration Default shall occur to, but excluding, the earlier of (1) the date that on which all Registration Defaults have been cured or (2) the Shelf Registration Statement has again date on which such Registrable Note ceases to be a Registrable Note or otherwise become effective or freely transferable by Holders other than affiliates of the Prospectus again becomes usable.
(e) Issuers without further registration under the Securities Act. Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or the Guarantors Issuers to comply with 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 Company’s Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Atlas Pipeline Partners Lp), Registration Rights Agreement (Atlas America Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by October 6, 2004 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer held by it following the consummation of the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Trinity Marine Products, Inc.), Registration Rights Agreement (Trinity Industries Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations interpretation of the staff of the SEC (the “Staff”), the Company and the Guarantors Issuer shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an the offer by the Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement Securities and to become effective and (iii) have such Exchange Offer Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and Issuer shall use its best efforts to cause such Exchange Offer Registration Statement to be declared effective by the Guarantors SEC by February 17, 2005. The Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is has been declared effective by the SEC and use their its reasonable best efforts to complete have the Exchange Offer Consummated not later than 60 days after such effective date. The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal exchange offer Prospectus and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 interest, but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder 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 appropriate enclosed letters of transmittal, to the institution institutions and at the address addresses (located in the Borough of Manhattan, The the City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case notice prior to the close of business on the last Exchange Date; and
(v) that any Holder Holders will be entitled to withdraw its their election, not later than the close of business (New York time) on the last Exchange Date, by (A) sending to the institution institutions and at the address addresses (located in the Borough of Manhattan, The 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 its his election to have such Securities exchanged or Notes exchanged.
(Bb) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuer shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuer and issue, and cause the Trustee to promptly authenticate and deliver mail to each Holder, an Exchange Securities Security equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. .
(c) The Company and the Guarantors Issuer shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or any applicable interpretations interpretation of the Staff. The Issuer 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) (id) In the event that the Company and the Guarantors determine Issuer determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed Consummated as soon as practicable after the last Exchange Date because it would violate any applicable law or the applicable interpretations of the Staff, (ii) in the event that or the Exchange Offer is not for any other reason completed on or before Consummated by February 17, 2005, then the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from Issuer may file any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to SEC that would result in the Holders of the Notes being able to resell their Notes in such a manner that they cease to be Registrable Securities copies Securities, and upon effectiveness of any such supplement or amendment promptly after Registration Statement, the Issuer shall have satisfied its being used or filed with the SECobligations hereunder.
(ce) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or Section 2(b) hereof. 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).
(df) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 As provided for in the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In Indenture, in the event that either the Exchange Offer is not completed Consummated or the Shelf Registration Statement, if required pursuant Statement referred to in Section 2(b)(i2(d) or 2(b)(ii) hereof, above has not become been declared effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)February 17, 2005, the annual interest rate on the Registrable Securities Notes will be increased by (i) 0.25to 9.875% per annum for (0.50% in excess of the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodthen current Note Rate), in each case until the Exchange Offer is completed Consummated or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Exchange Offer Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after SEC, whereupon the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, interest rate will decrease permanently to the “Shelf Additional Interest Date”), then the original interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableNotes.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Brasil Telecom Holding Co), Registration Rights Agreement (Brasil Telecom Sa)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Broker Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 prior to 210 days after the Closing Date date hereof or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 210 days after the Closing Date date hereof (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.251.00% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumAct. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (NBC Acquisition Corp), Registration Rights Agreement (Net Textstore LLC)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after following the initial effectiveness of the date that such Shelf Registration Statement is filed and (ii) when the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Any such additional interest shall be paid by the Company on the next scheduled interest payment date in the same manner that interest is paid on the Registrable Securities.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof. The provisions for payment of additional interest set forth in Section 2(d) above shall be the only monetary remedy available to the Holders under this Agreement.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Universal Health Services Inc), Registration Rights Agreement (Universal Health Services Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its commercially reasonable best efforts to (i) cause to be filed on or prior to the Target Filing Date an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Exchange Offer Registration Statement to become effective under the Securities Act as soon as practicable following filing with the SEC and (iii) have such Registration Statement remain effective until 180 days after during the last Exchange Date period required by the Securities Act for use by one or more Participating Broker-DealersDealers pursuant to Section 4 hereof. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their its commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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.
(dc) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to before the date that is 270 180 days after the Closing Target Filing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usablecompleted.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (NBCUniversal Media, LLC), Registration Rights Agreement (NBCUniversal Media, LLC)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors Issuers shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement by the 30th day after the Closing Date covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Exchange Offer Registration Statement to become be declared effective and under the Securities Act by the 90th day (iiior, if the SEC elects to review the Registration Statement, the 120th day) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-DealersClosing Date. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days 120th day (or, if the SEC elects to review the Registration Statement, the 150th day) after such effective datethe Closing Date. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing or delivering electronically the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 5 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Issuers that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors Issuers shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable of a change in law or applicable interpretations SEC policy after the issue date of the StaffRegistrable Securities, (ii) in the event that for any reason the Exchange Offer is not for any other reason completed on or before consummated by the date that is 270 days 150th day after the Closing Date Date, or if such day is not a Business Day, on or prior to the first Business Day thereafter, or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after Holder notifies the Issuers following the consummation of the Exchange Offer representing that (A) it is not permitted under law or SEC policy to participate in the Exchange Offer; (B) it cannot publicly resell exchange Registrable Securities without delivering a Prospectus, and the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for resales by that Holder or (C) it is a broker-dealer and holds Registrable Securities that are it has not exchanged and that it acquired directly from the Issuers or were ineligible one of their affiliates, then in addition to be exchanged or in lieu of conducting the Exchange Offer, the Company and the Guarantors Issuers shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, file a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors Issuers are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Issuers shall use their reasonable best efforts to file and have become 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors Issuers agree to use their reasonable best efforts (i) to file the Shelf Registration Statement by the 30th day after they become obligated to make the filing, (ii) to cause the registration statement to become effective within 60 days after such filing and (iii) to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Issuers further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers 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 Company and the Guarantors Issuers shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either (i) the Exchange Offer is not completed or completed, (ii) the Shelf Registration Statement, if required pursuant hereby, is not declared effective, (iii) the Exchange Offer Registration Statement is not filed, (iv) the Exchange Offer Registration Statement is not effective, (v) the Shelf Registration Statement is not filed or (vi) the Exchange Offer Registration Statement or the Shelf Registration Statement is declared effective, but thereafter, subject to Section 2(b)(icertain exceptions, ceases to be effective or usable in connection with the Exchange Offer or resales of any Registrable Securities registered under the Shelf Registration Statement (each such event referred to in clauses (i) or 2(b)(iithrough (vi) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the a “Target Registration DateDefault”), by within the time limits set forth in Sections 2(a) and 2(b) above, as applicable, additional interest rate in the form of additional cash interest (“Additional Interest”) will accrue on the Registrable Securities Notes required to be registered on a Shelf Registration. The rate of Additional Interest will be increased by (i) 0.251.00% per annum for the first 90-day period immediately following the Target occurrence of a Registration Date and (ii) Default, increasing by an additional 0.251.00% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, period up to a maximum increase amount of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.003.00% per annum, from and ending including the date on which any such Registration Default shall occur to, but excluding, the earlier of (1) the date that on which all Registration Defaults have been cured or (2) the Shelf Registration Statement has again date on which such Registrable Note ceases to be a Registrable Note or otherwise become effective or freely transferable by Holders other than affiliates of the Prospectus again becomes usable.
(e) Issuers without further registration under the Securities Act. Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or the Guarantors Issuers to comply with their 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 Company’s and the GuarantorsIssuers’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Purchase Agreement (Atlas Pipeline Partners Lp), Registration Rights Agreement (Atlas Pipeline Partners Lp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange SecuritiesSecurities (which registration statement, for the avoidance of doubt, may provide for the registration of other securities of the Company and Subsidiary Guarantors), (ii) cause such Exchange Offer Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 (1) 30 days after such effective datedate (or if such 30th day is not a Business Day, the next succeeding Business Day) and (2) the Target Registration Date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing in compliance with the applicable procedures of the depositary the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending delivering to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Subsidiary Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Subsidiary Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to (x) cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have (y) cause such Shelf Registration Statement to become effectiveeffective (which registration statement, for the avoidance of doubt, may provide for the registration of other securities of the Company and Subsidiary Guarantors). In the event that the Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to file and have cause to become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities registered thereunder cease to constitute Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Subsidiary Guarantors agree to furnish to the Holders of Registrable Securities (or file on XXXXX) copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either neither the Exchange Offer is not has been completed or the Shelf Registration Statementnor, if required in lieu thereof pursuant to Section 2(b)(i) or 2(b)(ii) hereof, the Shelf Registration Statement has not become effective effective, on or prior to the date that is 270 days after the Closing Target Registration Date (the such event, a “Target Registration DateDefault”), the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for from the first 90-day period immediately following date of such Registration Default to but excluding the Target earlier of the date such Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer Default is completed cured or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up Securities cease to a maximum increase of 1.00% per annumbe Registrable Securities. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (xa) 240 days after the Closing Target Registration Date or (yb) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”)Request, then the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from such date to but excluding the earlier of (i) the date on which such Shelf Additional Interest Date Registration Statement is declared effective and (ii) an additional 0.25% per annum with respect the date that the Securities cease to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumbe Registrable Securities. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the annual interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (that the Shelf Registration Statement ceases to be effective or the 61st day with respect Prospectus ceases to any suspension in accordance with Section 3(dbe usable to but excluding the earlier of (i) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableusable and (ii) the date that the Shelf Effectiveness Period ends; provided that if the failure of the Shelf Registration Statement to be effective or the Prospectus to be usable is otherwise permitted by this Agreement, then the increase in interest rate will only be effective if such failure to be effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period and such increase will commence on the 31st day that such failure to be effective or usable exists in such 12-month period. Notwithstanding the foregoing, (1) the Company and the Subsidiary Guarantors shall in no event be required to pay additional interest in excess of 0.25% per annum even if more than one Registration Default exists at any given time and (2) a Holder of Securities who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to additional interest with respect to a Registration Default that pertains to such Shelf Registration Statement.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Subsidiary Guarantors acknowledge that any failure by the Company or the Subsidiary Guarantors to comply with 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 Company’s and the Subsidiary Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus“written communication” (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act, any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act or a prospectus satisfying the requirements of Section 10(a) of the Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule 431 under the Securities Act.
(g) The additional interest provided for above shall be payable at the same times, in the same manner and to the same persons as ordinary interest on the Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Goodyear Tire & Rubber Co /Oh/), Registration Rights Agreement (Goodyear Tire & Rubber Co /Oh/)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall (x) use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) use their commercially reasonable efforts to (i) have such Registration Statement become effective on or before the Target Registration Date and (ii) remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. For the avoidance of doubt, clause (y)(ii) of the immediately preceding sentence shall not obligate the Company to file an amendment to the Exchange Offer Registration Statement (or make a filing with the SEC that would be incorporated by reference into the Exchange Offer Registration Statement) if, pursuant to Section 2(e), the Company would be entitled to invoke a Suspension Period and elect not to make such filing under the circumstances (it being understood and agreed that all references to Shelf Registration Statement in Section 2(e) shall be construed to include the Exchange Offer Registration Statement solely for purposes of this sentence). The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has been declared effective by the SEC, the Company and the Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 mailedmailed or made available) (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Guarantor, (4) 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 (iv5) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall use reasonable best efforts to comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and that no action or proceeding has been instituted or threatened in any court or by or before any governmental agency relating to the Exchange Offer which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and use commercially reasonable efforts to have such Shelf Registration Statement become effective; provided that (x) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof and, if necessary, the Shelf Registration Statement has been amended to reflect such information, and (y) in no event shall the Company or the Guarantors be under any obligation to file any such Shelf Registration Statement before they are obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file file, and shall use their commercially reasonable efforts to have become effective effective, both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to use their reasonable best efforts to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as reasonably requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant A Registration Default ends with respect to Section 2(b)(iii), and the Shelf Registration Statement required any Security when such Security ceases to be filed thereby has not become effective by a Registrable Security or, if earlier, (1) in the later case of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective effective, or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Notwithstanding anything to the contrary in this Agreement, if the Exchange Offer is consummated, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and withdrew or failed to validly tender its Securities in the Exchange Offer, will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such Securities will no longer constitute Registrable Securities hereunder.
(e) The Company and the Guarantors shall be entitled to suspend their obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”), for a reasonable period of time, but not in excess of 60 consecutive days or more than two times during any 12-month period (each, a “Suspension Period”), if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Company, any Guarantor or any of their respective subsidiaries that would require disclosure to be included or incorporated by reference in the Shelf Registration Statement or Prospectus (and disclosure would not be required to be made at such time but for the use of such Shelf Registration Statement or Prospectus) and the Company determines in the exercise of its reasonable judgment (and not for the purpose of avoidance of its obligations hereunder) that such disclosure is not in the best interest of the Company and its stockholders or would reasonably be expected to adversely affect in any material respect the Company or its business or the Company’s ability to effect a planned or proposed acquisition, disposition, business combination or other similar transaction. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof). Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to pay additional interest (and no additional interest shall accrue) pursuant to Section 2(d) in the case of a Registration Default under clauses (ii)-(v) of the definition thereof during a Suspension Period, and no such Suspension Period shall count against the periods and occasions set forth in clauses (iv) and (v) of such definition.
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 seek such relief as may be required to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Beacon Roofing Supply Inc), Purchase Agreement (Beacon Roofing Supply Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (ix) cause to be filed with the SEC an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer for each series promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer for such series not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer for each series by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents documents, if any, to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly 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 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that .
(i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantors shallshall use their reasonable best efforts:
(iI) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to the such Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of such series equal in principal amount to the principal amount of the Registrable Securities of such series validly tendered by such HolderHolder and accepted for exchange pursuant to such Exchange Offer. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer for Registrable Securities of a series may not be completed as soon as practicable after the last Exchange Date with respect to such Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities of such series by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration StatementDefault occurs, if required pursuant with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), a series of Registrable Securities the interest rate on the Registrable Securities of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities of such series cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum of the definition thereof, when the Exchange Offer for such series is completed, (2) in the first 90-day period payable commencing from the Shelf Additional Interest Date and case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (ITT Corp), Registration Rights Agreement (ITT Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i1) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iii2) have such Registration Statement remain effective until 180 210 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent in writing to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 Exchange Offer does not violate any applicable law or applicable interpretations of the Staff, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Exchange Offer that, in the Company’s judgment, could reasonably be expected to impair its ability to proceed with the Exchange Offer and (iii) any other conditions as shall be agreed upon by the Company and the Initial Purchasers.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before prior to 210 days from the date that is 270 days after the Closing Date hereof or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 no later than 90 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so reasonably request in writing in connection with any offer or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to 210 days from the date that is 270 days after the Closing Date hereof (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for consecutive days (or more than 60 days (in either casetotal, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) day, as applicable, in such 12-month period for the first 90-day period following such date thereafter and by an additional 0.25% per annum with respect to each subsequent 9060-day period, up to a maximum of 1.00% per annum, and in each case ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable, up to a maximum of 1.00% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Purchase Agreement (Church & Dwight Co Inc /De/), Registration Rights Agreement (Church & Dwight CO)
Registration Under the Securities Act. (a) To If the Escrowed Funds are released to fund the Transactions in accordance with Section 4(a) and 4(b) of the Escrow Agreement (the date of such release, the “Release Date”), to the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Frontier shall use their its reasonable best efforts to (i) cause to be filed within 90 days of the Release Date an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Frontier shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors Frontier shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittaltransmittal and related documents, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Frontier that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer Offer, it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Frontier and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Frontier shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Frontier and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Frontier shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that the Company and the Guarantors determine (i) Frontier determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Frontier shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are Frontier is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Frontier shall use their its reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree Frontier agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness date all of the Shelf Registration Statement Securities cease to be Registrable Securities and (ii) the date expiration of the period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors Frontier further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Frontier for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree Frontier agrees to furnish to the Holders of Registrable Securities (or file on XXXXX) copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Frontier shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company Frontier receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days the date that is five months after the Closing Release Date or and (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an (ii)an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum increase of 1.00% per annum, commencing on the 31st day in such 12-month period and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable, as the case may be.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge Frontier acknowledges that any failure by the Company or the Guarantors Frontier to comply with their 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 CompanyFrontier’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company Frontier represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Frontier Communications Corp), Registration Rights Agreement (Frontier Communications Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed with the SEC an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective not later than 180 days after the date hereof and (iii) to the extent necessary to ensure that the Prospectus contained in any Exchange Offer Registration Statement is available for sales of Registrable Securities by any Participating Broker-Dealers, have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-DealersDealers or such shorter period as will terminate when all Registrable Securities covered by such Registration Statement have been sold pursuant thereto. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 30 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by causing the mailing of the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a each Holder will be required to represent in writing to the Company and the Guarantors prior to the consummation of the Exchange Offer (which representation may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any Person to participate in in, the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus comply with the applicable provisions of the Securities Act (orincluding, to but not limited to, the extent permitted by law, make available a Prospectus to purchasersprospectus delivery requirements thereunder) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shallshall use their reasonable best efforts to:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount equal to the principal amount of the Registrable Securities validly tendered by such HolderHolder and accepted for exchange pursuant to the Exchange Offer. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date Date, in each case because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by October 4, 2006 or (iii) upon receipt of a written request (a “"Shelf Request”") from any the Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall shall, in lieu of (or, in the case of clause (ii) or (iii), in addition to) conducting the Exchange Offer as contemplated by Section 2(a), use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. As soon as practicable after the obligation to file a Shelf Registration Statement arise pursuant to this Section 2(b), the Company shall give notice (a "Shelf Notice") of such fact to the Holders and to the Initial Purchaser, if applicable. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause clauses (ii) or (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and time period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment as promptly as practicable after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date October 4, 2006 (the “"Target Registration Date”"), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following commencing from one day after the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities covered by such registration statement on which additional interest is being paid cease to be Registrable Securities; provided that the Closing Date, up to a maximum increase of interest rate on the Registrable Securities at which such additional interest accrues may in no event exceed 1.00% per annum. In the event that the Company receives a Shelf Request from the Initial Purchaser pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date September 4, 2006 or (y) 90 days after delivery of such Shelf Request (such later date, the “"Shelf Additional Interest Date”"), then the interest rate on the Registrable Securities held by the Initial Purchaser will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Registrable Securities held by the Closing DateInitial Purchaser become freely tradable under the Securities Act, up to a maximum increase of 1.00% per annum. Any additional interest on the Registrable Securities shall be calculated on the same basis on which Base Interest is calculated on the Securities under the Indenture. Any additional interest accrued for any period shall be payable at the relevant interest payment date for such period under the terms of the Securities and the Indenture. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 75 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date commencing on the 76th day and by (ii) an additional 0.25% per annum with respect to for each subsequent 90-day period, up to a maximum of 1.00% per annum, and in each case ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. Notwithstanding anything to the contrary in this Agreement, in connection with a Shelf Registration Statement, additional interest on the Registrable Securities shall not accrue and by payable to any Holder if the failure of the Company and/or the Guarantors to comply with their obligations hereunder is a result of the failure of such Holder to fulfill its obligations hereunder.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their 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 Company’s 's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus"free-writing prospectus" (as defined in Rule 405 under the Securities Act) in connection with the Securities or the Exchange Securities, other than any communication pursuant to Rule 134 under the Securities Act or any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tango of Arundel, Inc.), Purchase Agreement (Tango of Arundel, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing or electronically delivering, pursuant to procedures of the depositary, the related Prospectus, appropriate letters letter of transmittal and other accompanying documents documents, if any, to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittaltransmittal (if any), to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business expiration time on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business expiration time on the last Exchange Date, by (A) sending delivering to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange it is not an affiliate (as defined in Rule 144 of the Securities to be received by it will be acquired in Act) of the ordinary course of its businessCompany, (ii2) at the time of the commencement of the Exchange Offer it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any Person to participate in the in, a distribution (within the meaning of the Securities Act) of the Exchange Securities to be issued in violation of the provisions of the Securities Act, Exchange Offer and (iii3) it is not an “affiliate” (within acquiring the meaning Exchange Securities in its ordinary course of Rule 405 under the Securities Act) of the Company or any Guarantor business and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantor for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC. Notwithstanding the foregoing, the Company and the Guarantor shall not be required to file more than one post-effective amendment to the Shelf Registration Statement in any fiscal quarter, such timing to be determined in the reasonable discretion of the Company, to add one or more Holders to the “Selling Securityholders” table of the Shelf Registration Statement or to update any information in such table.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annumannum (the “Additional Interest”). In A Registration Default ends when the event that Securities cease to be Registrable Securities or, if earlier, (1) in the Company receives case of a Shelf Request pursuant to Section 2(b)(iii)Registration Default under clause (i) of the definition thereof, and when the Exchange Offer is completed or when a Shelf Registration Statement required to be filed thereby has not become effective by becomes effective, (2) in the later case of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Any increase in interest will be payable in cash semiannually in arrears on the same interest payment dates as the Securities, commencing with the first interest payment date occurring after any such Additional Interest commences to accrue.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or the Guarantors Guarantor to comply with 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 Company’s and the Guarantors’ Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (SPRINT Corp), Registration Rights Agreement (SPRINT Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed file an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Broker- Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer for Registrable Securities by mailing mailing, or delivering in compliance with the applicable procedures of the Depositary and applicable law the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange of Securities (which shall be a period of at least 20 Business Days (or such longer period as required by applicable law) from the date such notice is maileddisseminated) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecurityDepositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable SecuritiesDepositary. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer Holder representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company shall be under no obligation to file any such Shelf Registration Statement before the Target Registration Date. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Participating Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the a Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case thereafter until the applicable Exchange Offer is completed or completed, the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annum. In the Securities Act; provided that in no event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then should the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary aggregate amount of the Closing Date, up to a maximum increase of 1.00more than 0.50% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Periodusable on more than two occasions, and such failure failures to remain effective or be usable exists continue for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 consecutive days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or after the 61st 30th day with respect to any suspension in accordance with Section 3(d) hereof) in of the second such 1230-month period for the first 90consecutive-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable; provided that in no event shall the interest rate be increased by an aggregate amount of more than 0.50% per annum.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company or its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and or 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (BGC Group, Inc.), Registration Rights Agreement (BGC Partners, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for like principal amount of Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 90 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations interpretation of the Staff. 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 commercially reasonable 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 the light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders and 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) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations interpretation of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before prior to the date that is 270 days 270th day after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation shall so request in connection with any offer or sale of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange OfferSecurities, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement and (ii) the date Issue Date or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or cease to be Registrable Securities within the meaning of this Agreement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to correct information relating to such HolderHolder (provided the Majority Holders do not object to such amendment and resulting limitation of use of the Shelf Registration Statement), and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In 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. Accordingly, the Company and each Guarantor agree that in the event that that:
(i) either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days 270th day after the Closing Date (the a “Target Registration DateDefault”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and ; or
(ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable continues for 30 consecutive days or exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than an aggregate of 60 days (in either case, whether or not consecutive) in any 12-month period, period (a “Shelf Registration Default”); then the interest rate Company and the Guarantors hereby agree to pay each Holder of Registrable Securities affected thereby, liquidated damages (“Liquidated Damages”). Liquidated Damages will accrue on the affected Registrable Securities and the affected Exchange Securities, as applicable. The rate of Liquidated Damages will be increased by 0.25% per annum commencing on of the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in principal amount of Registrable Securities held by such 12-month period Holder for the first 90-day period immediately following such date and the occurrence of a Registration Default or Shelf Registration Default, as applicable, increasing by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that in each case until (x) with respect to a Registration Default, the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, is declared effective by the SEC or a Shelf Registration Statement relating to the Securities has become effective or (y) with respect to a Shelf Registration Default, the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable. 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 is not entitled to the benefits of the Shelf Registration Statement (i.e., such Holder has not elected to furnish information to the Company in accordance with Section 3(b) hereof) shall not be entitled to Liquidated Damages with respect to a Shelf Registration Default. Anything herein to the contrary notwithstanding, no Holder who (x) was eligible to exchange such Holder’s outstanding Securities at the time that the Exchange Offer was pending and consummated and (y) failed to validly tender such Securities for exchange pursuant to the Exchange Offer shall be entitled to receive any Liquidated Damages that would otherwise accrue subsequent to the date the Exchange Offer is consummated pursuant to this Section 2(d).
(e) 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 from time to time with respect to the Registrable Securities in cash semi-annually on the interest payment dates specified in the Indenture (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.
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(fg) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Chaparral Energy, Inc.), Registration Rights Agreement (Chaparral Energy, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) within 270 days of the Closing Date, cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) use their reasonable best efforts to (x) cause such Registration Statement to become and be declared effective within 360 days of the Closing Date and (iiiy) have cause such Exchange Offer Registration Statement to remain effective until the earlier of (A) 180 days after the last closing of the Exchange Date for use by one or more Offer and (B) the first day after the consummation of the Exchange Offer when Participating Broker-DealersDealers no longer have a prospectus delivery obligation under Staff interpretations. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 45 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business business, New York City time, on the last Exchange DateDate that is a Business Day, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Guarantor, (iv) it is not engaged in, and does not intend to engage in, the distribution (within the meaning of the Securities Act) of the Exchange Securities, (v) if such Holder is a broker-dealer, it did not purchase the notes being tendered in the Exchange Offer directly from the Company for resale pursuant to Rule 144A under the Securities Act or any other available exemption from registration under the Securities Act, and (ivvi) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and (ii) that no action or proceeding shall have been instituted in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to prevent the Company and the Guarantors from proceeding with or completing the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 395 days after from the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation shall so request in writing not later than 90 Business Days following completion of the Exchange Offer representing that it holds with respect to the Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange OfferOffer and held by it, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or otherwise cease to be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(ihereby, is not declared effective by 5:00 p.m. (Eastern Standard Time) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 395 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annumannum of additional interest. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and If the Shelf Registration Statement Statement, if required hereby, has been declared effective and thereafter at any time after the Target Date either ceases to be filed thereby has effective or the Prospectus contained therein ceases to be usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 45 days (whether or not become effective by the later of (xconsecutive) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”)in any 12-month period, then the interest rate on the Registrable Securities with respect to any period during which the Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable will be increased by (i) 0.25% per annum for the first 90-day period payable immediately commencing from on the Shelf Additional Interest Date 46th day in such 12-month period and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be again been declared effective or the Prospectus contained therein ceases to be again becomes usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableannum of additional interest.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Davita Inc), Registration Rights Agreement (Davita Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an prepare and, not later than 150 days following the date hereof (the “Closing Date”), file with the SEC the Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) use their commercially reasonable efforts to cause such the Exchange Offer Registration Statement to become effective under the Securities Act no later than 240 days after the Closing Date and the Exchange Offer to be consummated no later than 270 days after the Closing Date and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after commercially reasonable efforts to keep the Exchange Offer Registration Statement is declared effective for not less than 30 days (or longer, if required by applicable law) after the SEC and use their reasonable best efforts to complete date on which notice of the Exchange Offer not later than 60 days after such effective dateis mailed to the Holders. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn 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 not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before consummated prior to the date that is 270 days later of (x) the 60th day following the effectiveness of the Exchange Offer Registration Statement and (y) the 270th day after the Closing Date Date, or (iii) upon receipt prior to the 30th day following completion of a written request (a “Shelf Request”) from the Exchange Offer, any Initial Purchaser within 30 days after so requests in writing with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer representing or a broker-dealer notifies us that it holds Registrable Securities that are acquired directly from the Company or were ineligible an Affiliate of the Company, or (iv) prior to be exchanged in the 30th day following completion of the Exchange Offer, any Holder notifies us that, due to any change or development in law, rules, regulations or SEC policy, (A) such Holder is not permitted to participate in the Exchange Offer or (B) such Holder will not receive freely transferable Exchange Securities in exchange for tendered Registrable Securities (it being understood that a requirement that a Holder deliver the prospectus contained in the Exchange Offer Registration Statement in connection with the sale of Exchange Securities shall not result in such Exchange Securities being not “freely transferable”), then the Company and the Guarantors shall use their commercially reasonable best efforts to file prior to the later of (i) 270 days after the Closing Date and (ii) 120 days after the obligation to file arises pursuant to this Section 2(b), and thereafter shall use their commercially reasonable efforts to cause to be filed declared effective as soon promptly as practicable practical on or prior to 210 days after such determination, date or Shelf Request, as the case may befiling, a Shelf Registration Statement providing for the sale of all Statement; provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Registrable Securities or the Exchange Securities held by it covered by the Holders thereof and to have such Shelf Registration Statement become effectiveuntil such Holder shall have delivered a complete and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Subject to the third paragraph of Section 2(d) hereof, the Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective effective, supplemented and amended until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement and (ii) the date Closing Date or such shorter period that will terminate when all the Registrable Transfer Restricted Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement thereto (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 StatementStatement and any fees and disbursements of counsel not included in the definition of Registration Expenses and paid for by the Company and Guarantors in accordance with this Agreement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum aggregate increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Subject to the limitation set forth in the immediately succeeding paragraph and subject to the provisions of Section 3 of this Agreement, the Company shall be entitled to delay the initial filing of the Shelf Registration Statement, suspend its obligation to file any amendment to the Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in the Shelf Registration Statement, make any other filing with the SEC that would be incorporated by reference into the Shelf Registration Statement, cause the Shelf Registration Statement to remain effective or take any similar action (collectively, “Registration Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company, the Guarantors or any of their subsidiaries that, upon the advice of counsel, would require disclosure in the Shelf Registration Statement and the Company determines in the exercise of its good faith judgment and not for the purpose of avoidance of its obligations under this Agreement that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement would be impracticable or upon any event described in Section 3(a)(vi)(5). Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice (a “Suspension Notice”) thereof to the Holders. Upon the termination of such condition, the Company shall give prompt notice thereof to the Holders and shall promptly proceed with all Registration Actions that were suspended pursuant to this paragraph. The Company may suspend Registration Actions pursuant to the preceding paragraph for one or more periods (each, a “Suspension Period”) not to exceed 90 days in the aggregate during any 365-day period. Each Suspension Period shall be deemed to begin on the date the relevant Suspension Notice is given to the Holders and shall end on the date on which the Company gives the Holders a notice that the Suspension Period has terminated. The Company shall extend the Shelf Effectiveness Period by the total number of days during which a Suspension Period was in effect, so long as there are Registrable Securities outstanding. Notwithstanding anything to the foregoing, the Company shall at all times use its commercially reasonable efforts to end any Suspension Period at the earliest possible time.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof; provided, however, that the obligation of the Company and Guarantors to pay the additional interest set forth in Section 2(d) shall be the sole and exclusive remedy, monetary or otherwise, with respect to a Registration Default.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Select Medical Holdings Corp), Registration Rights Agreement (Select Medical Holdings Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed file an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer for Registrable Securities by mailing mailing, or delivering in compliance with the applicable procedures of the Depositary and applicable law the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange of Securities (which shall be a period of at least 20 Business Days (or such longer period as required by applicable law) from the date such notice is maileddisseminated) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecurityDepositary, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable SecuritiesDepositary. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer Holder representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company shall be under no obligation to file any such Shelf Registration Statement before the Target Registration Date. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Participating Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the a Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has does not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case thereafter until the applicable Exchange Offer is completed or completed, the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annum. In the Securities Act; provided that in no event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then should the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary aggregate amount of the Closing Date, up to a maximum increase of 1.00more than 0.50% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Periodusable on more than two occasions, and such failure failures to remain effective or be usable exists continue for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 consecutive days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or after the 61st 30th day with respect to any suspension in accordance with Section 3(d) hereof) in of the second such 1230-month period for the first 90consecutive-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable; provided that in no event shall the interest rate be increased by an aggregate amount of more than 0.50% per annum.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company or its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and or 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Newmark Group, Inc.), Registration Rights Agreement (BGC Partners, Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last date the Exchange Date Offer Registration Statement became effective for use by one or more Participating Broker-Dealers. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective datethe Target Registration Date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days (in accordance with the Exchange Act) 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 exchange, such other information as may be reasonably required to identify the Securities to be withdrawn and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor or, if it is such an “affiliate,” such Holder will comply with the prospectus delivery requirements of the Securities Act to the extent applicable in connection with any resale of the Exchange Securities and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-market making or other trading activities, then such Holder will deliver a Prospectus (orcomply with the prospectus delivery requirements of the Securities Act, to the extent permitted by lawapplicable, make available a Prospectus to purchasers) in connection with any resale of such the Exchange Securities. Each Holder hereby acknowledges and agrees that any broker-dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under SEC policy as in effect on the date of this Agreement rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities obtained by such Holder in exchange for Registrable Securities acquired by such Holder directly from the Company. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and customary conditions relating to the delivery of Securities or other actions customarily taken by Holders participating in the Exchange Offer or the execution and delivery of customary documentation relating to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) a Holder participating in the event Exchange Offer does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and notifies (a “Holder Notice”) the Company within 30 days after such Holder first becomes aware of such restrictions, (iii) the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iiiiv) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed filed, as soon as practicable after such determination, date date, Holder Notice or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) or (iv) of the preceding sentence, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier for a period of (i) one year after from the initial effectiveness effective date of the such Shelf Registration Statement and (ii) or such shorter period that will terminate when the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant cease to the Shelf Registration Statement be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Holders of Registrable Securities registered on such Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder Holder, including the Market Maker, 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed by the Target Registration Date or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii2(b)(iii) hereof, has is not become effective on or prior to by the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date such date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum total increase of 1.000.50% per annum. In the event that the Company receives a Holder Notice or Shelf Request pursuant to Section 2(b)(iii2(b)(ii) or 2(b)(iv), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Target Registration Date or (y) 90 days after delivery of such Holder Notice or Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum total increase of 1.000.50% per annum. If the Shelf Registration Statement, if required hereby, has become is effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month periodperiod (the 30th such date, the “Trigger Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period immediately following such date the Trigger Date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum increase of 1.000.50% per annum, and ending on such date that the Shelf Registration Statement has is again become effective or the Prospectus again becomes usable. Such additional interest shall accrue as liquidated damages on the principal amount of the Exchange Securities or Registrable Securities, as the case may be.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or the Guarantors Guarantor to comply with 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 Company’s and the Guarantors’ Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kraft Heinz Co), Registration Rights Agreement (Kraft Heinz Co)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Subsidiary Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Exchange Offer Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use Offer or such longer period if extended by one any of the events set forth in Section 3(a)(v)(3) or more Participating Broker-DealersSection 3(a)(v)(5). The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 45 days after such effective date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 to participate in an Exchange Offer under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required may do so pursuant to (A) surrender The Depository Trust Company’s Automated Tender Offer Program or by surrendering such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Subsidiary Guarantors in writing that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Subsidiary Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus comply with all the applicable provisions of the Securities Act (orincluding, to but not limited to, the extent permitted by law, make available a Prospectus to purchasersprospectus delivery requirements thereunder) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder or such Holder’s nominee; provided that, in the case of any Securities held in global form by a depositary, the delivery to such depositary of one or more authenticated Exchange Securities in global form in an equivalent principal amount for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Company and the Subsidiary Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Company or the Subsidiary Guarantors to proceed with the Exchange Offer and (iii) all governmental approvals which the Company deems necessary for the consummation of the Exchange Offer shall have been obtained.
(b) (i) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 255 days after date of the Closing Date Supplemental Indenture or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that based on advice of its counsel are or were ineligible to be exchanged in the Exchange Offer, the Company and the Subsidiary Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. To the extent that a Shelf Registration Statement is required to be filed solely pursuant to clause (ii) above, and the Exchange Offer is subsequently completed on a date later than the date specified in clause (ii) above, upon consummation of such Exchange Offer, the Company and the Subsidiary Guarantors will no longer be required to file, make effective or continue the effectiveness of such Shelf Registration Statement In the event that the Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Subsidiary Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Subsidiary 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 Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 StatementStatement and, except as otherwise contemplated by this Agreement, any fees and disbursements of any counsel or experts it retains in connection therewith.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has is not become declared effective on or prior to the date that which is 270 255 days after the Closing Date date of the Supplemental Indenture, the annual interest rate on the Registrable Securities will be increased (i) 0.25% per annum for the first 90-day period immediately following such date and (ii) and additional 0.25% per annum with respect to each subsequent 90-day period that such additional interest continues to accrue; provided that the rate at which the additional interest is payable on the Registrable Securities shall in no event exceed 1.00% per annum) until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, is declared effective by the SEC or the Securities become freely tradable under the Securities Act. In the event the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby is not declared effective by the later of (x) the date which is 210 days after the date of the Supplemental Indenture and (y) 90 days after the delivery of such Shelf Request (such later date, the “Target Registration Shelf Additional Interest Date”), then the annual interest rate borne by the Registrable Securities shall be increased (i) 0.25% per annum for the first 90-day period immediately following the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period that such additional interest continues to accrue; provided that the rate at which the additional interest is payable on the Registrable Securities shall in no event exceed 1.00% per annum, and such additional interest will continue to accrue until the Shelf Registration Statement is declared effective or the Securities no longer constitute Registrable Securities, as the case may be. If the Shelf Registration Statement, if required hereby, has been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date 31st day in such 12-month period and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, period that such additional interest continues to accrue (provided that the rate at which the additional interest is payable on the Registrable Securities shall in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of no event exceed 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required such additional interest shall cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending accrue on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Subsidiary Guarantors acknowledge that any failure by the Company or the Subsidiary Guarantors to comply with 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 Company’s and the Subsidiary Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Purchase Agreement (Eye Care Centers of America Inc), Registration Rights Agreement (Eye Care Centers of America Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Issuers shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Issuers that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Issuers and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Issuers shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Issuers shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors Issuers shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Issuers as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors Issuers are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Issuers shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Issuers agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Issuers further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Issuers agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors Issuers shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Issuers acknowledge that any failure by the Company or the Guarantors Issuers to comply with 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 Company’s and the GuarantorsIssuers’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Purchase Agreement (Star Gas Partners Lp), Registration Rights Agreement (Star Gas Partners Lp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to to
(ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become effective on or before the Target Registration Date and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Guarantor shall commence the Exchange Offer for each series promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer for such series not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors Guarantor shall commence the Exchange Offer for each series of Registrable Securities by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly 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 each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any the Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of such series equal in principal amount to the principal amount of the Registrable Securities of such series tendered by such Holder. The Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to complete the each Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the each Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.
(b) If (i) In the event that the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer for Registrable Securities of a series may not be completed as soon as practicable after the last Exchange Date with respect to such Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the such Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of prior to the last Exchange Date with respect to such Exchange Offer, the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer Holder representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in the such Exchange Offer, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities of such series by the Holders thereof and to have such Shelf Registration Statement become effective. In ; provided that (a) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the event that prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and (b) the Company and the Guarantors Guarantor shall be under no obligation to file any such Shelf Registration Statement before they are obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof. If the Company and the Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors Guarantor agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors Guarantor agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as requested by the Participating Holders.
(c) The Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant Default occurs with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)a series of Registrable Securities, the interest rate on the Registrable Securities of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that Securities of such series cease to be Registrable Securities or, if earlier, (1) in the Company receives case of a Shelf Request pursuant to Section 2(b)(iii)Registration Default under clause (i) or (ii) of the definition thereof, and when the Exchange Offer for such series is completed or when the Shelf Registration Statement required to be filed thereby has not become covering such Registrable Securities becomes effective by the later of (x) 240 days after the Closing Date or (y2) 90 days after delivery in the case of such Shelf Request a Registration Default under clause (such later dateiii) or clause (iv) of the definition thereof, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until when the Shelf Registration Statement again becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Anything herein to the contrary notwithstanding, if the applicable Exchange Offer is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender or withdrew, its Securities for Exchange Securities in such Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such Securities will no longer constitute Registrable Securities hereunder.
(e) The Company and the Guarantor shall be entitled to suspend their obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition or business combination or other transaction, business development or event involving the Company, the Guarantor or either of their subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company or the Guarantor determines that such disclosure is not in the best interest of the Company, the Guarantor and their stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors Guarantor acknowledge that any failure by the Company or the Guarantors Guarantor to comply with 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 Company’s and the Guarantors’ Guarantor’s obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 2 contracts
Samples: Registration Rights Agreement (Phillips 66), Registration Rights Agreement (Conocophillips)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until the lesser of 180 days after the last closing of the Exchange Date for use by one or more Offer and the date on which all Participating Broker-DealersDealers have sold all Exchange Securities held by them. The Company and the Guarantors shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, election by (A) 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, which notice, telegram, telex, facsimile transmission or letter must be received no 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by November 19, 2003 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. Notwithstanding the foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any such amendment thereto, to become effective for a period of up to 60 days, if the Company determines in good faith that such Shelf Registration Statement, and any such amendment thereto, might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised; provided, however, that the Company may not exercise such right of delay or withholding of efforts more frequently than two times in any 12-month period and the aggregate period of any such delays or withholdings shall not exceed 60 days in any such 12-month period. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date November 19, 2003 (the “"Target Registration Date”"), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s 's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities Notes for Exchange Securities, (ii) cause such Registration Statement to become effective Notes and (iiiy) have such Registration Statement become effective on or before the Target Registration Date and, if requested by one or more Participating Broker-Dealers, remain effective until 180 days after the last Exchange Date for use by one or more such Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer for the Registrable Notes promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities Notes validly tendered and not properly 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 each, an “Exchange DatesDate”);
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security Note exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable SecurityNote, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecurityNote, in each case prior to the close of business on the last Exchange DateDate with respect to the Exchange Offer; and
(v) that any Holder of Registrable Notes will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer, by (A) 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, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable SecuritiesNotes. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities Notes to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities Notes in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Company, (4) 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 Notes and (iv5) if such Holder is a broker-dealer that will receive Exchange Securities Notes for its own account in exchange for Registrable Securities Notes that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesNotes. As soon as practicable after the last Exchange DateDate with respect to the Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities Notes or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities Notes equal in principal amount to the principal amount of the Registrable Securities Notes tendered by such Holder; provided that if any of the Registrable Notes are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Notes in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their its commercially reasonable best efforts to complete the Exchange Offer as provided above and shall use commercially reasonable efforts to comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and that no action or proceeding has been instituted or threatened in any court or by or before any governmental agency relating to the Exchange Offer which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date with respect to the Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of prior to the last Exchange Date with respect to such Exchange Offer, the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities Notes that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities Notes by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Notes included in any Shelf Registration Statement, or entitled to use the Prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof and, if necessary, the Shelf Registration Statement has been amended to reflect such information, and (b) the Company shall be under no obligation to file any such Shelf Registration Statement before it is obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Notes covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement Notes (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to use its commercially reasonable efforts to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities Notes with respect to information relating to such Holder, and to use their its commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as reasonably requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities Notes (and only the Registrable Notes) will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day periodDefault ends, up to a maximum of 1.00% per annumannum of additional interest. A Registration Default ends with respect to any Note when such Note ceases to be a Registrable Note or, and ending on such date that if earlier, (1) in the case of a Registration Default under clause (i) or (ii) of the definition thereof, when the Exchange Offer is completed or when the Shelf Registration Statement has covering such Registrable Notes becomes effective or (2) in the case of a Registration Default under clause (iii) or (iv) of the definition thereof, when the Shelf Registration Statement again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Notwithstanding anything to the contrary in this Agreement, if the Exchange Offer is consummated, any Holder who was, at the time the Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, or withdrew, its Notes for Exchange Notes in the Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such Notes will no longer constitute Registrable Notes hereunder.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Company or its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 seek to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or regulation, the SEC or applicable interpretations of the Staff, the Company and the Guarantors shall use their its commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the outstanding Registrable Securities for Exchange Securities, Notes and (iiy) cause such Registration Statement to become effective and (iii) have such by the Target Registration Statement Date and, if requested by one or more Participating Broker-Dealers, remain effective until 180 days after the last Exchange Date for use by one or more such Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer for each series of New Notes promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer for such series not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer for each series by mailing and/or electronically delivering, or by causing the mailing and/or electronic delivery of, the related Prospectus, appropriate letters of transmittal (if necessary) and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of such series validly tendered and not properly 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 Prospectus is mailedmailed and/or electronically delivered) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a any Registrable Security of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittaltransmittal (if necessary), to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the noticeProspectus, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Securities of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the noticeProspectus, a telegram, 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 its election to have such Registrable Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities Notes to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities Notes in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Company, (4) 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 Notes and (iv5) if such Holder is a broker-dealer that will receive Exchange Securities Notes for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesNotes. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities of a series, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities of such series or portions thereof validly tendered and not properly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities Notes of such series equal in principal amount to the principal amount of the Registrable Securities of such series tendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their its commercially reasonable best efforts to complete the each Exchange Offer as provided above and shall use commercially reasonable efforts to comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the each Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law law, rule, regulation or applicable interpretations of the StaffStaff and that no action or proceeding has been instituted or threatened in any court or by or before any governmental agency relating to the Exchange Offer which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the Exchange Offer. Interest on each Exchange Note will accrue from the last interest payment date on which interest was paid on each applicable Registrable Security surrendered in the Exchange Offer, or if no interest has been paid on the applicable Registrable Security surrendered in the Exchange Offer, from the last interest payment date on which interest was paid on the applicable Existing Note surrendered in connection with the offer to exchange New Notes for Existing Notes as set forth in the Offering Memorandum.
(b) If (i) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that reason the Exchange Offer is not for any other reason completed on or before prior to the date that is 270 days after the Closing Target Registration Date or (iiiii) upon receipt of following the Target Registration Date the Company receives a written request (a “Shelf Request”) from (x) any Initial Purchaser within 30 days after the consummation of the Exchange Offer Dealer Manager representing that it holds Registrable Securities of the applicable series that are or were ineligible to be exchanged in any such Exchange Offer, or (y) (1) any Holder of Registrable Securities that confirms that any applicable law or interpretations do not permit such Holder of Registrable Securities to participate in the Exchange Offer, or (2) any Holder of Registrable Securities that participates in the Exchange Offer who does not receive freely transferable Exchange Notes in exchange for tendered Registrable Securities, or (3) any Holder of Registrable Securities who validly tendered Registrable Securities pursuant to the Exchange Offer but which were not exchanged for the applicable Exchange Notes promptly after being accepted for exchange, the Company and the Guarantors shall use their its commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, and become effective a Shelf Registration Statement providing for the sale of all the Registrable Securities of such series by the Holders thereof and thereof; provided that (1) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof and, if necessary, the Shelf Registration Statement has been amended to reflect such information, and (2) the Company shall be under no obligation to file any such Shelf Registration Statement become effectivebefore they are obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iiiii) of the immediately preceding sentenceparagraph, the Company and the Guarantors shall use their its commercially reasonable best efforts to file and have cause to become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and and, with respect to any Registrable Securities to which clause (ii) of the immediately preceding paragraph applies, a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of such Registrable Securities held by the Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the New Notes covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to use its commercially reasonable efforts to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their its commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as reasonably requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant Default occurs with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)a series of Registrable Securities, the interest rate on the Registrable Securities (and only the Registrable Securities) of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends with respect to any New Notes when such New Notes cease to be Registrable Securities or, if earlier, (1) in the event that case of a Registration Default under clause (i) of the Company receives a Shelf Request pursuant to Section 2(b)(iii)definition thereof, and when the Exchange Offer for such series is completed or when the Shelf Registration Statement required to be filed thereby has not become covering such Registrable Securities becomes effective by the later of (x) 240 days after the Closing Date or (y2) 90 days after delivery in the case of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodof the definition thereof, in each case until when the Shelf Registration Statement again becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on the next date that there is no Registration Default. Notwithstanding anything to the contrary in this Agreement, if the applicable Exchange Offer with respect to a series of Registrable Securities is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, or withdrew, its New Notes for Exchange Notes in such Exchange Offer will not be entitled to receive any additional interest pursuant to the immediately preceding paragraph, and such New Notes will no longer constitute Registrable Securities hereunder. Any amounts of additional interest due under this Section 2(d) will be payable in cash on the regular interest payment dates of the New Notes. The additional interest will be determined by multiplying the applicable additional interest rate by the principal amount of the New Notes, 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 composed of twelve 30-day months, but it being understood that if the regular interest payment date of the New Notes is not a Business Day and the payment is made on the next succeeding Business Day, no further interest will accrue as a result of such delay), and the denominator of which is 360.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Company or any of its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers Dealer Managers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Dealer Managers 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 Dealer Managers or any Holder may obtain such relief as may be required seek to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Coterra Energy Inc.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer as promptly as is reasonably practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 90 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange, subject to the conditions of the Exchange Offer;
(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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as reasonably practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which, in the Company's judgment, might reasonably be expected to impair its ability to proceed with the Exchange Offer; and (iii) all governmental approvals shall have been obtained which approvals the Company deems necessary for the consummation of the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by August 19, 2005 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged has been completed and in the Exchange Offeropinion 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 offer or sale of Registrable Securities, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as reasonably practicable after such determination, date or Shelf Requestnotice of such opinion of counsel is given to the Company, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities upon request copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)August 19, 2005, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) annum, increasing an additional 0.25% per annum with respect every 90 days thereafter, up to each subsequent 90-day perioda maximum of 1.00% per annum, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later SEC or the Securities become freely tradable under the Securities Act. For purposes of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later datethis paragraph, the “Shelf Additional Interest Date”), then term "Registrable Securities" shall not include any Securities that could have been exchanged in the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum Exchange Offer for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumfreely tradable securities. If the Shelf Registration Statement, if required hereby, has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usableusable or the Securities otherwise become freely tradable under the Securities Act.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ 's obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Subsidiary Guarantors shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers, pursuant to Section 4(b) hereof. The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents documents, if any, to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 mailedmailed or made available) (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Subsidiary Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Subsidiary Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Subsidiary Guarantors shallshall use their reasonable best efforts to:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities validly tendered by such Holder. The Company and the Subsidiary Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff. For the avoidance of doubt, notwithstanding any provision of this Section 2(a) purporting to require physical mailing, delivery or acceptance of any document or instrument, the Company and the Subsidiary Guarantors may conduct the Exchange Offer exclusively through the automated tender offer program of The Depository Trust Company or any successor or similar system permitting electronic transmittal, tender and acceptance of documents and instruments, provided that this provision shall apply only to Registrable Securities held in the form of beneficial interests in a global note deposited with (or held by a custodian for) The Depository Trust Company.
(b) (i) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, in each case unless the Company and the Subsidiary Guarantors shall have previously done so, the Company and the Subsidiary Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Subsidiary Guarantors shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier for a period of (i) one year after the initial 18 months from its effectiveness of the Shelf Registration Statement and (ii) the date or such shorter period that will terminate when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf 8 Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Subsidiary Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Subsidiary Guarantors acknowledge that any failure by the Company or the Subsidiary Guarantors to comply with their obligations under Section 2(a2 (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 Company’s and the Subsidiary Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Quicksilver Resources Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall use their reasonable best efforts to commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective dateSEC. The Company and the Guarantors shall commence the Exchange Offer by mailing (or, to the extent permitted by law, making available ) the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, notice or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecuritySecurities, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, or (ii) in the event any Initial Purchaser holding Registrable Securities that may not be exchanged for Exchange Securities pursuant to an offer covered by the Exchange Offer is not for any other reason completed on or before Registration Statement shall so request, no later than the date that is 270 days 90th day after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing (provided that it holds such date occurs prior to the 365th day from the date of this Agreement), in connection with any offer or sale of Registrable Securities that are or were ineligible to be exchanged in the Exchange OfferSecurities, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iiiii) of the preceding sentencethis Section 2(b), the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to this Section 2(b), the Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) date that is one year after the initial effectiveness date of the Shelf Registration Statement and (ii) the date this Agreement or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act, if applicable. In the event that either the Exchange Offer is not completed within 365 days after the date hereof or the Shelf Registration Statement, if required hereby, is not declared effective within 60 days after such Shelf Registration Statement is required to be filed pursuant to Section 2(b)(i) or 2(b)(ii2(b) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-—day period immediately following the Target Registration Date that such condition is not satisfied and (ii) an additional 0.25% per annum with respect to each subsequent successive 90-—day periodperiod during which the condition is not satisfied, up to a maximum additional interest of 0.50% per annum of additional interest, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or is no longer required to be effective. If the Shelf Registration Statement, if required hereby, has been declared effective and thereafter either ceases to be effective or the second anniversary of Prospectus contained therein ceases to be usable at any time during the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii)Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”)Effectiveness Period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-—day period payable commencing from the Shelf Additional Interest Date that such condition is not satisfied and (ii) an additional 0.25% per annum with respect to each subsequent successive 90-day period, in each case until period during which the Shelf Registration Statement becomes effective or the second anniversary of the Closing Datecondition is not satisfied, up to a maximum increase additional interest of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.250.50% per annum of additional interest, commencing on the 31st day (or in the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, Shelf Effectiveness Period and ending on the earlier of (a) such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable, or (b) the date on which the Shelf Registration Statement is no longer required to be effective. For the purpose of clarification, any additional interest payable pursuant to this Section 2(d) shall be payable at the same time as interest on the Securities.
(e) Without limiting The remedy set forth in Section 2(d) hereof shall constitute liquidated damages and shall be the remedies available to sole and exclusive remedy of the Initial Purchasers Holders for each and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Clayton Williams Energy Inc /De)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities Notes for Exchange Securities, (ii) cause such Registration Statement to become effective Notes and (iiiy) have such Registration Statement become effective on or before the Target Registration Date and, if requested by one or more Participating Broker-Dealers, remain effective until 180 days after the last Exchange Date for use by one or more such Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer for each series of Registrable Notes promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its commercially reasonable best efforts to complete the Exchange Offer for such series not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer for each series by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities Notes of such series validly tendered and not properly 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 each, an “Exchange DatesDate”);
(iii) that any Registrable Security Note not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security Note of a series exchanged pursuant to the Exchange Offer for such series will be required to (A) surrender such Registrable SecurityNote, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable SecurityNote, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Notes of a series will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer for such series, by (A) 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, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities Notes delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities Notes exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable SecuritiesNotes. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities Notes to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities Notes in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Company, (4) 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 Notes and (iv5) if such Holder is a broker-dealer that will receive Exchange Securities Notes for its own account in exchange for Registrable Securities Notes that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesNotes. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Notes of a series, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities Notes of such series or portions thereof validly tendered and not properly withdrawn pursuant to the such Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities Notes of such series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities Notes of such series equal in principal amount to the principal amount of the Registrable Securities Notes of such series tendered by such Holder; provided that if any of the Registrable Notes are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Notes in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their its commercially reasonable best efforts to complete the each Exchange Offer as provided above and shall use commercially reasonable efforts to comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the each Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the StaffStaff and that no action or proceeding has been instituted or threatened in any court or by or before any governmental agency relating to the Exchange Offer which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer for Registrable Notes of a series may not be completed as soon as practicable after the last Exchange Date with respect to such Exchange Offer because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the such Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of prior to the last Exchange Date with respect to such Exchange Offer, the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities Notes of the applicable series that are or were ineligible to be exchanged in the such Exchange Offer, the Company and the Guarantors shall use their its commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities Notes of such series by the Holders thereof and to have such Shelf Registration Statement become effective; provided that (a) no Holder will be entitled to have any Registrable Notes included in any Shelf Registration Statement, or entitled to use the Prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof and, if necessary, the Shelf Registration Statement has been amended to reflect such information, and (b) the Company shall be under no obligation to file any such Shelf Registration Statement before it is obligated to file an Exchange Offer Registration Statement pursuant to Section 2(a) hereof. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Notes covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement Notes (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to use its commercially reasonable efforts to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities Notes with respect to information relating to such Holder, and to use their its commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as reasonably requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 Notes pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant Default occurs with respect to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)a series of Registrable Notes, the interest rate on the Registrable Securities Notes (and only the Registrable Notes) of such series will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day periodDefault ends, up to a maximum of 1.00% per annumannum of additional interest. A Registration Default ends with respect to any Note when such Note ceases to be a Registrable Note or, and ending on if earlier, (1) in the case of a Registration Default under clause (i) or (ii) of the definition thereof, when the Exchange Offer for such date that series is completed or when the Shelf Registration Statement has covering such Registrable Notes becomes effective or (2) in the case of a Registration Default under clause (iii) or (iv) of the definition thereof, when the Shelf Registration Statement again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default. Notwithstanding anything to the contrary in this Agreement, if the applicable Exchange Offer with respect to a series of Registrable Notes is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, or withdrew, its Notes for Exchange Notes in such Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such Notes will no longer constitute Registrable Notes hereunder.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Company or its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 seek to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective datedate and, in any event, not later than the Target Registration Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 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 Agreement, except as otherwise expressly specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (iw) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (iix) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iiiy) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (ivz) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iA) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) prior to the 30th day following the last Exchange Date from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the selling Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder shall be entitled to have its Registrable Securities covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder and has returned to the Company a completed and signed Notice and Questionnaire in reasonable and customary form by the reasonable deadline for responses set forth therein. To the extent that a Shelf Registration Statement is required to be filed pursuant to clause (ii) and the Exchange Offer is completed on a date later than the Target Registration Date, the Company and the Guarantors shall no longer be required to use commercially reasonable efforts to file, make effective or continue the effectiveness of the Shelf Registration Statement, except to the extent required pursuant to clause (i) or (iii). In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentenceparagraph, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when such time as all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicablereasonably practicable thereafter. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date October 12, 2013 or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (ix) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (iiy) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable; provided, however, that in no event shall such additional interest, together with the additional interest payable pursuant to the immediately preceding paragraph, if any, exceed 1.00% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof; provided that the Initial Purchasers and Holders shall not be entitled to compel specific performance of the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof in the event that the Company has removed the restrictive legend from all Registrable Securities that bear such legend pursuant to Section 2(f) hereof; provided, however, for the avoidance of doubt, the Initial Purchasers and the Holders shall be entitled to receive any and all additional interest due under Section 2(d) hereof and shall be entitled to seek specific performance to compel the payment of such additional interest.
(f) The Company representsshall use commercially reasonable efforts, warrants on or prior to October 12, 2013, to remove the restrictive legend from any Registrable Securities that bear such legend on such date and covenants that it (including its agents and representatives) will not prepareto obtain an unrestricted CUSIP number for such Registrable Securities, make, use, authorize, approve or refer in each case to any Free Writing Prospectusthe extent permitted by applicable law.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until the lesser of 180 days after the last closing of the Exchange Date for use by one or more Offer and the date on which all Participating Broker-DealersDealers have sold all Exchange Securities held by them. The Company and the Guarantors shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) Affiliate of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. Notwithstanding the foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any such amendment thereto, to become effective for a period of up to 60 days, if the Company determines in good faith that such Shelf Registration Statement, and any such amendment thereto, might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised; provided, however, that the Company may not exercise such right of delay or withholding of efforts more frequently than two times in any 12-month period and the aggregate period of any such delays or withholdings shall not exceed 60 days in any such 12-month period. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness second anniversary of the Shelf Registration Statement and (ii) the date Closing Date or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 Exchange Offer Registration Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with SEC. The Company and Guarantors shall use commercially reasonable efforts to complete the SEC as provided by Rule 462 under Exchange Offer within 120 days after the Securities ActClosing Date. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of the Closing DateSecurities cease to be Registrable Securities, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus“free-writing prospectus” (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act or any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Lamar Media Corp/De)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 prior to 210 days after the Closing Date date hereof or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 210 days after the Closing Date (the “Target Registration Date”)date hereof, the interest rate on the Registrable Securities will be increased by (i) 0.251.00% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annumSecurities Act. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ 's obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (NBC Acquisition Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, Staff the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed no later than the date that is 210 days after the date of this Agreement, an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Exchange Offer Registration Statement to become effective in no event later than the date that is 270 days after the date of this Agreement and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 30 days after such effective datedate (or if such 30th day is not a Business Day, the next succeeding Business Day). The Company and the Guarantors shall commence the Exchange Offer by mailing in compliance with the applicable procedures of the depositary the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending delivering to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 300 days after the Closing Date date of this Agreement or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the no Securities registered thereunder constitute Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities (or file on XXXXX) copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either (i) the Exchange Offer Registration Statement is not filed with the SEC on or prior to the date that is 210 days after the date of this Agreement, (ii) the Exchange Offer Registration Statement has not been declared effective by the SEC on or prior to the date that is 270 days after the date of this Agreement or (iii) the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 300 days after the Closing Date date of this Agreement (the each such event referred to in clauses (i) through (iii) above, a “Target Registration DateDefault”), the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for from the first 90-day period immediately following date of such Registration Default to but excluding the Target earlier of the date such Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer Default is completed cured or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up Securities cease to a maximum increase of 1.00% per annumbe Registrable Securities. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (xa) 240 the date that is 300 days after the Closing Date date of this Agreement or (yb) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from such date to but excluding the earlier of (i) the date on which such Shelf Additional Interest Date Registration Statement is declared effective and (ii) an the date that the Securities cease to be Registrable Securities. Notwithstanding the foregoing, (1) the Company and the Guarantors shall in no event be required to pay additional interest in excess of 0.25% per annum even if more than one Registration Default exists at any given time and (2) a Holder of Notes or Exchange Notes who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to additional interest with respect to each subsequent 90-day period, in each case until the a Registration Default that pertains to such Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumStatement. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the annual interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (that the Shelf Registration Statement ceases to be effective or the 61st day with respect Prospectus ceases to any suspension in accordance with Section 3(dbe usable to but excluding the earlier of (i) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableusable and (ii) the date that the Shelf Effectiveness Period ends; provided that if the failure of the Shelf Registration Statement to be effective or the Prospectus to be usable is otherwise permitted by this Agreement, then the increase in interest rate will only be effective if such failure to be effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period and such increase will commence on the 31st day that such failure to be effective or usable exists in such 12-month period.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus“written communication” (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act, any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act or a prospectus satisfying the requirements of Section 10(a) of the Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule 431 under the Securities Act.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer offers to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall , (iii) commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to (iv) complete the Exchange Offer not later than 60 within 360 days after such effective datethe Closing Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters letter of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 shall not violate any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not not, for any other reason completed on or before by the date that is 270 days after 360th calendar day following the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required is requested to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and time period referred to in Rule 144 under the Securities Act (ii) the date or any similar rule in force, but not Rule 144A), or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the period from the Closing Date to such earlier day, the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after 360th calendar day following the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day periodperiod thereafter, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Dateeffective, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the 360th calendar day following the Closing Date or (y) 90 120 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day periodperiod thereafter, in each case until the Shelf Registration Statement becomes effective or the second anniversary expiration of the Closing DateShelf Effectiveness Period, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following commencing on the 31st day in such date 12-month period that such Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable and by (ii) an additional 0.25% per annum with respect to each subsequent 90-90 day periodperiod thereafter, up to a maximum of 1.00% per annum, and ending on such date that in each case until the Shelf Registration Statement has again become effective or effective, the Prospectus again becomes usableusable or the expiration of the Shelf Effectiveness Period, up to a maximum increase of 1.00% per annum.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Sba Communications Corp)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors Issuers shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement by July 11, 2006 covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Exchange Offer Registration Statement to become be declared effective and (iii) have such Registration Statement remain effective until 180 days after under the last Exchange Date for use Securities Act by one or more Participating Broker-DealersOctober 10, 2006. The Company and the Guarantors Issuers shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective dateNovember 9, 2006. The Company and the Guarantors Issuers shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Issuers that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors Issuers shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable of a change in law or applicable interpretations SEC policy after the issue date of the StaffRegistrable Securities, (ii) in the event that for any reason the Exchange Offer is not for any other reason completed consummated by November 9, 2006, or if such day is not a Business Day, on or before prior to the date that is 270 days after the Closing Date or first Business Day thereafter, (iii) upon receipt completion of a written request (a “Shelf Request”) from the Exchange Offer any Initial Purchaser within 30 days after shall so request in connection with any offering or sale of Registrable Securities, or (iv) any Holder notifies us following the consummation of the Exchange Offer representing that (A) it holds Registrable Securities that are is not permitted under law or were ineligible SEC policy to be exchanged participate in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.;
Appears in 1 contract
Samples: Registration Rights Agreement (Noark Pipeline System, L.P.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations interpretation of the staff of the SEC (the “Staff”), the Company and the Guarantors Issuer shall use their its reasonable best efforts to (i) cause to be filed and cause to become effective an Exchange Offer Registration Statement covering an the offer by the Issuer to the Holders to exchange all of the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement Securities and to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors Issuer shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is has been declared effective by the SEC SEC, and use their its reasonable best efforts to complete have the Exchange Offer not later than 60 consummated on or prior to the date that is 390 days after such effective datefollowing the issuance of the Securities (the “Exchange Offer Closing Deadline”). The Company and the Guarantors Issuer shall commence the Exchange Offer by mailing or electronically transmitting (through the facilities of The Depositary Trust Company) the related Prospectus, appropriate letters of transmittal exchange offer Prospectus and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially including statements to the followingeffect that:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered and not properly validly 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 interest, but will not retain any rights under pursuant to Section 2(a) of this Registration Rights Agreement, except as otherwise specified herein;
(iv) that any Holder Holders electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (Aa) surrender such Registrable Security, together with the appropriate enclosed letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case notice prior to the close of business on the last Exchange DateDate and (b) represent to the Issuer, as a condition to participation in the Exchange Offer, that (A) any Exchange Securities received by such Holder will be acquired in the ordinary course of its business, (B) such Holder has no, and will not have, any arrangement or understanding with any person to participate in the distribution of the Securities within the meaning of the Securities 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) such Holder is not an Affiliate of the Issuer. If the Holder is a Broker-Dealer that will receive Exchange 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 Securities 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 Securities 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 Securities Act; and
(v) that any Holder Holders will be entitled to withdraw its their election, not later than the close of business on the last Exchange Date, by (A) 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 Xxxxxx is withdrawing its his election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:exchanged.
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuer and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, an Exchange Securities Security equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors Issuer shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or any applicable interpretations interpretation of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine 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 completed as soon as practicable after consummated by the last Exchange Date Offer Closing Deadline because it would violate any applicable law or the applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before consummated by the date that is 270 days after the Exchange Offer Closing Date Deadline or (iii) upon receipt with respect to any Holder of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are (A) such Holder is prohibited by applicable law or were ineligible to be exchanged SEC policy from participating in the Exchange Offer, or (B) such Holder may not resell the Company Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Guarantors 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 their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestnotice is given to the Issuer, as the case may bebe (the “Shelf Filing Obligation”), a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are Issuer is required to file a Shelf Registration Statement pursuant solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors Issuer shall use their its reasonable best efforts to file and have become 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 Initial Purchasers Holders after completion of the Exchange Offer. The Company and the Guarantors agree Issuer agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier for a period of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the 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 (the “Shelf Effectiveness Period”)or are no longer outstanding. The Company and the Guarantors Issuer further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuer for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree Issuer agrees to furnish to the Holders each Holder of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, to the extent requested by any such Holder.
(c) The Company and the Guarantors Issuer shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or Section 2(b) hereof). Each Holder shall pay all underwriting discounts and commissionsdiscounts, 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 is automatically any other governmental agency or court, such Registration Statement will be deemed not to have been declared effective upon filing with until the SEC as provided by Rule 462 under the offering of Registrable Securities Actpursuant to such Registration Statement may legally resume. In the event that either (a) the Issuer does not consummate the Exchange Offer on or prior to the Exchange Offer Closing Deadline or (b) a Shelf Registration Statement is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become declared effective on or prior to the date that is 270 90 days after the Shelf Filing Obligation arises (which shall in no event be earlier than the Exchange Offer Closing Date Deadline) (the each such event referred to in clause (a) and (b) a “Target Registration DateDefault”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for during the first 90-day period immediately following the occurrence of any Registration Default, and such date and increased rate will further increase by an additional 0.25% per annum with respect to each subsequent 90-beginning on the 91st day periodfollowing the occurrence of such Registration Default, up to a maximum of 1.00but in no event shall such increases (such amounts “Additional Interest”) exceed in the aggregate 0.50% per annumannum regardless of the number of Registration Defaults that have occurred and are continuing. Following the cure of all Registration Defaults, and ending the interest rate on the Registrable Securities will be reduced to the original interest rate; provided, however, that, if after any such date that reduction in interest rate, a different Registration Default occurs, the Shelf Registration Statement has interest rate on the Registrable Securities shall again become effective or be increased pursuant to the Prospectus again becomes usableforegoing provisions. 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 Additional Interest. Additional Interest 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 Company and the Guarantors acknowledge Issuer acknowledges that any failure by the Company or the Guarantors Issuer to comply with their 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 CompanyIssuer’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Purchase Agreement
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly as soon as practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 30 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed by or on or before the date that is 270 days after the Closing Date July 14, 2005 or (iii) upon receipt of a written request (a “Shelf Request”) from any an Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as reasonably practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date July 14, 2005 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annumannum of additional interest. In the event that the Company receives If a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement is required to be filed thereby has due to an unsold allotment of Registrable Securities held by an Initial Purchaser and the shelf registration is not become declared effective by on the later of (x) 240 180 days after the Closing Date or Time and (y) 90 days after delivery such Initial Purchaser informs the Company of such Shelf Request unsold allotment (such later date, the “Shelf Additional Interest Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Additional Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period until the shelf registration is declared effective, up to a maximum of 1.00% per annum of additional interest; provided, however, that in the event of a Shelf Registration Statement due to an unsold allotment, holders of Registrable Securities that are permitted to participate in the Exchange Offer but fail to do so shall not be entitled to the foregoing increase in interest rate, and the Initial Purchasers shall cooperate with the Company in identifying the Securities not entitled to such increase in interest rate. If the Shelf Registration Statement, if required hereby, has been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from on the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-31st day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annumannum of additional interest, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Community Health Systems Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or regulation, the SEC or applicable interpretations of the Staff, the Company and the Guarantors shall use their its commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the outstanding Registrable Securities for Exchange Securities, Notes and (iiy) cause such Registration Statement to become effective and (iii) have such by the Target Registration Statement Date and, if requested by one or more Participating Broker-Dealers, remain effective until 180 days after the last Exchange Date for use by one or more such Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer for the New Notes promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The After the Exchange Offer Registration Statement has become effective, the Company and the Guarantors shall commence the Exchange Offer by mailing and/or electronically delivering, or by causing the mailing and/or electronic delivery of, the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the such Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 mailedmailed and/or electronically delivered) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a any Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange DateDate with respect to such Exchange Offer; and
(v) that any Holder of Registrable Securities will be entitled to withdraw its election, not later than the close of business on the last Exchange DateDate with respect to the Exchange Offer, by (A) 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, 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 its election to have such Registrable Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the an Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities Notes to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the such Exchange Offer it has no arrangement or understanding with any Person to participate in the a distribution (within the meaning of the Securities Act) of the Exchange Securities Notes in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Company, (4) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes and (iv5) if such Holder is a broker-dealer that will receive Exchange Securities Notes for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesNotes. As soon as practicable after the last Exchange DateDate with respect to an Exchange Offer for Registrable Securities, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the such 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities Notes equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, the Company shall, in cooperation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures. The Company and the Guarantors shall use their its commercially reasonable best efforts to complete the each Exchange Offer as provided above and shall use commercially reasonable efforts to comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the each Exchange Offer. The No Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law law, regulation or applicable interpretations of the StaffStaff and that no action or proceeding has been instituted or threatened in any court or by or before any governmental agency relating to the Exchange Offer which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the Exchange Offer.
(b) If (i) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that reason the Exchange Offer is not for any other reason completed on or before prior to the date that is 270 days after the Closing Target Registration Date or (iiiii) upon receipt of following the Target Registration Date the Company receives a written request (a “Shelf Request”) from (x) any Initial Purchaser within 30 days after the consummation of the Exchange Offer Dealer Manager representing that it holds Registrable Securities that are or were ineligible to be exchanged in any such Exchange Offer or (y) any Holder of Registrable Securities that participates in the Exchange OfferOffer who does not receive freely transferable Exchange Securities in exchange for tendered Registrable Securities, the Company and the Guarantors shall use their its commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, become effective a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and thereof; provided that (1) no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof and, if necessary, the Shelf Registration Statement has been amended to reflect such information, and (2) the Company shall be under no obligation to file any such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required before it is obligated to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offerhereof. The Company and the Guarantors agree agrees to use their its commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the New Notes covered thereby cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to use its commercially reasonable efforts to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or Statement, by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their its commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC, as reasonably requested by the Participating Holders.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SECSEC or becomes effective automatically pursuant to Section 8(a) of the Securities Act. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends with respect to any New Notes when such New Notes cease to be Registrable Securities or, if earlier, (1) in the event that case of a Registration Default under clause (i) of the Company receives a Shelf Request pursuant to Section 2(b)(iii)definition thereof, and when the Exchange Offer is completed or when the Shelf Registration Statement required to be filed thereby has not become covering such Registrable Securities becomes effective by the later of (x) 240 days after the Closing Date or (y2) 90 days after delivery in the case of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodof the definition thereof, in each case until when the Shelf Registration Statement again becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on the next date that there is no Registration Default. Notwithstanding anything to the contrary in this Agreement, if the Exchange Offer is consummated, any Holder who was, at the time such Exchange Offer was pending and consummated, eligible to exchange, and did not validly tender, or withdrew, its New Notes for Exchange Notes in such Exchange Offer will not be entitled to receive any additional interest pursuant to the preceding paragraph, and such New Notes will no longer constitute Registrable Securities hereunder.
(e) The Company shall be entitled to suspend its obligation to file any amendment to a Shelf Registration Statement, furnish any supplement or amendment to a Prospectus included in a Shelf Registration Statement or any Free Writing Prospectus, make any other filing with the SEC that would be incorporated by reference into a Shelf Registration Statement, cause a Shelf Registration Statement to remain effective or the Prospectus or any Free Writing Prospectus usable or take any similar action (collectively, “Suspension Actions”) if there is a possible acquisition, disposition or business combination or other transaction, business development or event involving the Company or any of its subsidiaries that may require disclosure in the Shelf Registration Statement or Prospectus and the Company determines that such disclosure is not in the best interest of the Company and its stockholders or obtaining any financial statements relating to any such acquisition or business combination required to be included in the Shelf Registration Statement or Prospectus would be impracticable. Upon the occurrence of any of the conditions described in the foregoing sentence, the Company shall give prompt notice of the delay or suspension (but not the basis thereof) to the Participating Holders. Upon the termination of such condition, the Company shall promptly proceed with all Suspension Actions that were delayed or suspended and, if required, shall give prompt notice to the Participating Holders of the cessation of the delay or suspension (but not the basis thereof).
(f) Without limiting the remedies available to the Initial Purchasers Dealer Managers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers Dealer Managers 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 Dealer Managers or any Holder may obtain such relief as may be required seek to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents; provided, warrants and covenants however, that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer with respect to any Free Writing ProspectusRegistration Default which occurs prior to the 90th day after the Target Registration Date, payment of additional interest as described in Section 2(d) hereof shall be the sole and exclusive remedy in respect of such Registration Default.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last date the Exchange Date Offer Registration Statement became effective for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange exchange, such other information as may be reasonably required to identify the Securities to be withdrawn and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff and customary conditions relating to the delivery of Securities or other actions customarily taken by Holders participating in the Exchange Offer or the execution and delivery of customary documentation relating to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any the Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed filed, as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after such period as will terminate when the initial effectiveness of Securities covered by the Shelf Registration Statement cease to be Registrable Securities and (ii) the date when such time as all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Truven Holding Corp.)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange SecuritiesSecurities not later than 300 days after (or if the 300th day is not a Business Day, the first Business Day thereafter) the date of original issue of the Securities and (ii) cause such Exchange Offer Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 under the Securities Act not later than 110 days after filing (or if the last Exchange Date for use by one or more Participating Broker-Dealers110th day is not a Business Day, the first Business Day thereafter). The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days 30 Business Days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, following the Trigger Date, the Company and the Guarantors shall use their its reasonable best efforts to to
(i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 “each, an "Exchange Dates”Date");
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest dividends but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Registrable Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions pro- visions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation cancel all Registrable Securities or portions thereof so accepted for exchange by the Company and issueCompany, and cause the Trustee to issue and promptly authenticate and deliver to each Holder, Holder Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 by 210 days after the Closing Trigger Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds has been completed and in the opinion of counsel for the Initial Holder[s] a Registration Statement must be filed and a Prospectus must be delivered by the Initial Holder[s] in connection with any offering or sale of Registrable Securities that are or were ineligible to be exchanged in held by the Exchange OfferInitial Holder[s], the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestnotice of such opinion of counsel is given to the Company, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof (or Initial Holder[s] that [is a holder] [are holders] thereof in the case of a Shelf Registration Statement filed pursuant to clause (iii) of this sentence) and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become 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 State- ment with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers Holder[s] after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”)Statement. The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such HolderHolder[s], and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 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 is automatically any court or other governmental or regulatory agency or body, such Registration Statement will be deemed not to have become effective upon filing with during the SEC as provided by Rule 462 under period of such interference until the offering of Registrable Securities Actpursuant to such Registration Statement may legally resume. In the event that either the Exchange Offer is not completed or the a Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to by the date that is 270 SEC within 210 days after of the Closing Date (the “Target Registration Trigger Date”), the interest rate on the Holders of Registrable Securities will be increased by (i) 0.25% per annum entitled to liquidated damages on each share of Registrable Securities equal to $0.25 for the first each 90-day period immediately following (pro rated based on the Target Registration Date and (iinumber of days actually elasped) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary Registrable Securities become freely tradable under the Securities Act (the period beginning on the 211th day after the Trigger Date and ending on the date of completion of the Closing Date, up to a maximum increase Exchange Offer or the effective date of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has or the date on which the Registrable Securities become freely tradable under the Securities Act, as the case may be, the "Default Period"); provided, however, that if, for any reason, the Company does not become effective by the later of (x) 240 days pay such liquidated damages within five Business Days after the Closing Date or (y) 90 days after delivery end of such Shelf Request (such later datethe Default Period, the “Shelf Additional Interest Date”)dividend rate or interest rate, then the interest rate as applicable, on the Registrable Securities will be deemed to have been increased by (i) 0.251.00% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days Default Period (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors shall be released from its obligation to comply with 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 pay 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofliquidated damages).
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the StaffStaff of the SEC, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until the lesser of 180 days after the last closing of the Exchange Date for use by one or more Offer and the date on which all Participating Broker-DealersDealers have sold all Exchange Securities held by them. The Company and the Guarantors shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:,
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the StaffStaff of the SEC.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 190 days after the Closing Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation completion of the Exchange Offer representing that it holds any Initial Purchaser shall so request in connection with any offering or sale of Registrable Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. Notwithstanding the foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any such amendment thereto, to become effective for a period of up to 60 days, if the Company determines in good faith that such Shelf Registration Statement, and any such amendment thereto, might interfere with or affect the negotiation or completion of any transaction that is being contemplated by the Company (whether or not a final decision has been made to undertake such transaction) at the time the right to delay is exercised; provided, however, that the Company may not exercise such right of delay or withholding of efforts more frequently than two times in any 12-month period and the aggregate period of any such delays or withholdings shall not exceed 60 days in any such 12-month period. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any the registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 190 days after the Closing Date (the “"Target Registration Date”"), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, Statement has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s 's and the Guarantors’ ' obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus"free-writing prospectus" (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act or any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Lamar Advertising Co/New)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company Issuer and the Guarantors shall use their commercially reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 one hundred eighty (180) days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company Issuer and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 sixty (60) days after such effective date. The Company Issuer and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 twenty (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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuer and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuer or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuer and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company Issuer and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company Issuer and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company Issuer and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company Issuer and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Issuer as is contemplated by Section 3(b) hereof. In the event that the Company Issuer and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company Issuer and the Guarantors shall use their commercially reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company Issuer and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company Issuer and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuer for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company Issuer and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company Issuer and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each the subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.000.50% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company Issuer and the Guarantors acknowledge that any failure by the Company Issuer or the Guarantors to comply with 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 CompanyIssuer’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (National CineMedia, LLC)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law laws, rules or regulations or applicable interpretations of the Staffstaff of the SEC, the Company Issuers and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 mailedmailed or longer if required by applicable laws, rules or regulations or otherwise extended by the Issuers, at their option) (the each, an “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its electionelection to have its Registrable Securities exchanged in the Exchange Offer, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company Issuers and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Issuers or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company Issuers and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company Issuers and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staffstaff of the SEC.
(b) (i) In the event that (i) the Company Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law laws, rules or regulations or applicable interpretations of the StaffStaff of the SEC, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by May 3, 2004 or (iii) upon receipt completion of a written request (a “Shelf Request”) from any the Exchange Offer the Initial Purchaser within 30 days after shall so request in connection with any offering or sale of Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible (each such event referred to be exchanged in the Exchange Offerclauses (i) through (iii) of this sentence, a “Shelf Filing Event”), the Company Issuers and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company Issuers and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The Company Issuers and the Guarantors agree to use their reasonable best efforts to have the Shelf Registration Statement declared effective on or prior to the 90th day, or if that day is not a Business Day then the next Business Day, following any Shelf Filing Event (but in no event prior to 180 days following the Closing Date) and to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and (iiperiod referred to in Rule 144(k) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company Issuers 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. In the case of a Shelf Registration Statement, the Issuers may require each Holder of Registrable Securities to furnish to the Issuers such information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Issuers and the Guarantors may from time to time reasonably request in writing. No Holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Issuers in writing such information within 15 Business Days after receipt of a request therefor. Each Holder of Registrable Securities as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Issuers all information required to be disclosed in order to make information previously furnished to the Issuers by such Holder not materially misleading. No Holder of Registrable Securities who violates these covenants shall be entitled to the liquidated damages provided for pursuant to Section 2(e).
(c) The Company Issuers and the Guarantors shall pay all Registration Expenses in connection with any the each registration pursuant to Section 2(a) or and Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing SEC.
(e) Each of the Issuers and the Initial Purchaser agree that the Holders will suffer damages if the Issuers fail to fulfill their obligations under this Section 2 and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, the SEC as provided by Rule 462 under the Securities Act. In Issuers agree:
(i) in the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date May 3, 2004 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (ia) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (iib) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and annum of additional interest; and
(ii) if the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usableusable or at the end of the Shelf Effectiveness Period. Upon the occurrence of either such event referred to in clauses (i) and (ii) above, (each a “Registration Default”), liquidated damages in the form of additional cash interest (the “Liquidated Damages”) will accrue on the affected Notes and the affected Exchange Notes, as applicable. Notwithstanding the foregoing, a Holder of Notes or Exchange Notes who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to Liquidated Damages with respect to a Registration Default that pertains to such Shelf Registration Statement. The Company shall notify the Trustee within one Business Day after each and every date on which an event occurs in respect of which Liquidated Damages are required to be paid (each, an “Event Date”). Any amounts of Liquidated Damages due pursuant to this Section 2 will be payable in addition to any other interest payable from time to time with respect to the Registrable Securities in cash semi-annually on the interest payment dates specified in the Indenture (to the Holders of records as specified in the Indenture), commencing with the first such interest payment date occurring after any such Event Date. The amount of Liquidated Damages will be determined in a manner consistent with the calculation of interest under the Indenture.
(ef) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company Issuers and the Guarantors acknowledge that any failure by the Company Issuers or the Guarantors to comply with their 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 CompanyIssuer’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective under the Securities Act by June 29, 2013 and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (Ax) in the case of a Holder electing to exchange a Registrable Security in global form, to comply with the applicable procedures of DTC for book-entry tenders, and, (y) in the case of a Holder electing to exchange a Registrable Security in certificated form, to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (Ax) in the case of a Holder withdrawing its election to exchange a Registrable Security in global form, complying with the applicable procedures of DTC for withdrawal of tenders, and, (y) in the case of a Holder withdrawing its election to exchange a Registrable Security in certificated form, 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 its election to have such Registrable Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by June 29, 2013, or (iii) upon receipt of a written request by any Holder of Registrable Securities that (A) is prohibited by applicable law or SEC policy from participating in the Exchange Offer or (B) 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 (iv) any Initial Purchaser shall so request (a “Shelf Request”) from in connection with any Initial Purchaser within 30 days after the consummation offer or sale of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectiveeffective under the Securities Act. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iiiiv) of the preceding sentence, the Company and the Guarantors shall use their its reasonable best efforts to file and have become effective under the Securities Act 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) for one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effectiveeffective under the Securities Act, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicablepracticable thereafter. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that (i) either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has is not become declared effective on or prior to the date that is 270 days after the Closing Date June 29, 2013 (the “Target Registration Date”), or (ii) the Company receives a Shelf Request pursuant to Section 2(b)(iii) or 2(b)(iv) hereof, and the Shelf Registration Statement required to be filed thereby is not declared effective by the SEC by the later of (x) November 29, 2012 or (y) 90 days after the delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (iA) 0.25% per annum for the first 90-day period immediately following the Target Registration Date or the Shelf Additional Interest Date, as applicable, and (iiB) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes has become effective under the Securities Act or the second anniversary of the Closing DateSecurities no longer qualify as Registrable Securities, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later annum of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annuminterest. If the Shelf Registration Statement, if required hereby, has become effective under the Securities Act and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, period (whether or not consecutive) and ending on such date that the Shelf Registration Statement has again become effective under the Securities Act or the Prospectus again becomes usable, up to a maximum of 1.00% per annum of additional interest.
(e) Without limiting Any additional interest paid in accordance with this Section 2 shall be liquidated damages and shall be the remedies sole and exclusive remedy available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any Holders due to a failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof).
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 within 210 days after the Closing Date date hereof or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days shall so request, no later than the 90th day after the consummation completion of the Exchange Offer representing that it holds Offer, in connection with any offer or sale of Registrable Securities that are or were ineligible to be exchanged in the Exchange OfferSecurities, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed within 210 days after the date hereof or the Shelf Registration Statement, if required hereby, is not declared effective within 60 days after such Shelf Registration Statement is required to be filed pursuant to Section 2(b)(i) or 2(b)(ii2(b) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date that such condition is not satisfied and (ii) an additional 0.25% per annum with respect to each subsequent successive 90-day periodperiod during which the condition is not satisfied, up to a maximum additional interest of 1.0% per annum of additional interest, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes is declared effective by the SEC or the Securities become freely tradable under the Securities Act. If the Shelf Registration Statement, if required hereby, has been declared effective and thereafter either ceases to be effective or the second anniversary of Prospectus contained therein ceases to be usable at any time during the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii)Effectiveness Period, and the Shelf Registration Statement required such failure to be filed thereby has remain effective or usable exists for more than 30 days (whether or not become effective by the later of (xconsecutive) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”)in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date that such condition is not satisfied and (ii) an additional 0.25% per annum with respect to each subsequent successive 90-day period, in each case until period during which the Shelf Registration Statement becomes effective or the second anniversary of the Closing Datecondition is not satisfied, up to a maximum increase additional interest of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.0% per annum of additional interest, commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable, or the date on which the Securities become freely tradable under the Securities Act. For the purpose of clarification, any additional interest payable pursuant to this Section 2(d) shall be payable at the same time as interest on the Securities.
(e) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Clayton Williams Energy Inc /De)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities of the applicable series and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until the earlier of (A) 180 days after the last closing of the Exchange Date Offer for use by one or more Participating Broker-DealersDealers and (B) the first day after the closing of the Exchange Offer on which Participating Broker-Dealers no longer have a prospectus delivery obligation under the interpretations of the Staff of the SEC referenced in Section 4(a). The Company and the Subsidiary Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Subsidiary Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Subsidiary Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Subsidiary Guarantor, (iv) 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 (A) Rule 144A under the Securities Act or (B) any other available exemption from registration under the Securities Act and (ivv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities of the applicable series equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Subsidiary Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by June 18, 2007 or (iii) upon receipt of a written any Initial Purchaser shall so request in writing (a “Shelf Request”) from any Initial Purchaser within 30 days after not later than the consummation 30th day following completion of the Exchange Offer representing that it holds in connection with any offering or sale of Registrable Securities that held by such requesting Initial Purchaser, which Registrable Securities are or were ineligible to be exchanged for Exchange Securities in the Exchange Offer, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. A Holder that sells Securities pursuant to the Shelf Registration Statement will be required to be named as a selling security holder in the related prospectus, to provide information related thereto and to deliver such prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the Agreement that are applicable to such a Holder (including certain indemnification rights and obligations). The Company will not have any obligation to include in the Shelf Registration Statement Holders who do not deliver such information to it. In the event that the Company and the Subsidiary Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii2(b)(iii) of the preceding sentenceabove, the Company and the Subsidiary Guarantors shall use their commercially reasonable best efforts to file and have cause to become effective 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 Initial Purchasers who provide the Company and the Subsidiary Guarantors with a Shelf Request after completion of the Exchange Offer. The Company and the Subsidiary Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Subsidiary Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Subsidiary 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 Company and the Subsidiary Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date June 18, 2007 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.000.50% per annum. If the Exchange Offer Registration Statement is not declared effective on or prior to the 210th calendar day following the Closing Date and the Company and the Subsidiary Guarantors had requested Holders of the Securities to provide the information called for herein for inclusion in the Shelf Registration Statement, the Securities owned by Holders who do not deliver such information to the Company and the Subsidiary Guarantors when required pursuant to the Agreement will not be entitled to any such increase in the interest rate unless and until such Holders provide such information and then only for the period following the fifth day after which they have provided such information. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date June 18, 2007 or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.000.50% per annum. If the Exchange Offer Registration Statement is not declared effective on or prior to the 210th calendar day following the Closing Date and the Company and the Subsidiary Guarantors had requested Holders of the Securities to provide the information called for herein for inclusion in the Shelf Registration Statement, the Securities owned by Holders who do not deliver such information to the Company and the Subsidiary Guarantors when required pursuant to the Agreement will not be entitled to any such increase in the interest rate unless and until such Holders provide such information and then only for the period following the fifth day after which they have provided such information. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases if the Company and Subsidiary Guarantors fail to keep such Shelf Registration Statement continuously (x) effective and (y) useable for resales for the period required by the Agreement due to certain circumstances relating to pending corporate developments, public filings with the SEC and similar events, or because the prospectus contains an untrue statement of a material fact or omits to state a material fact required to be effective stated therein or necessary in order to make the Prospectus contained statements therein ceases to be usable, in each case whether or not permitted by this Agreementmisleading, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 90 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st 91st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Subsidiary Guarantors acknowledge that any failure by the Company or the Subsidiary Guarantors to comply with 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 Company’s and the Subsidiary Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Reliance Steel & Aluminum Co)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, Staff the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Exchange Offer Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 (i) 30 days after such effective datedate (or if such 30th day is not a Business Day, the next succeeding Business Day) and (ii) the Target Registration Date. The Company and the Guarantors shall commence the Exchange Offer by mailing in compliance with the applicable procedures of the depositary the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) sending delivering to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the no Securities registered thereunder constitute Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders of Registrable Securities (or file on XXXXX) copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either neither the Exchange Offer is not has been completed or the Shelf Registration Statementnor, if required in lieu thereof pursuant to Section 2(b)(i) or 2(b)(ii) hereof, the Shelf Registration Statement has not become effective effective, on or prior to the date that is 270 days after the Closing Target Registration Date (the such event, a “Target Registration DateDefault”), the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for from the first 90-day period immediately following date of such Registration Default to but excluding the Target earlier of the date such Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer Default is completed cured or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up Securities cease to a maximum increase of 1.00% per annumbe Registrable Securities. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (xa) 240 days after the Closing Target Registration Date or (yb) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from such date to but excluding the earlier of (i) the date on which such Shelf Additional Interest Date Registration Statement is declared effective and (ii) an the date that the Securities cease to be Registrable Securities. Notwithstanding the foregoing, (1) the Company and the Guarantors shall in no event be required to pay additional interest in excess of 0.25% per annum even if more than one Registration Default exists at any given time and (2) a Holder of Notes or Exchange Notes who is not entitled to the benefits of a Shelf Registration Statement shall not be entitled to additional interest with respect to each subsequent 90-day period, in each case until the a Registration Default that pertains to such Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annumStatement. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the annual interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (that the Shelf Registration Statement ceases to be effective or the 61st day with respect Prospectus ceases to any suspension in accordance with Section 3(dbe usable to but excluding the earlier of (i) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usableusable and (ii) the date that the Shelf Effectiveness Period ends; provided that if the failure of the Shelf Registration Statement to be effective or the Prospectus to be usable is otherwise permitted by this Agreement, then the increase in interest rate will only be effective if such failure to be effective or usable exists for more than 30 days (whether or not consecutive) in any 12-month period and such increase will commence on the 31st day that such failure to be effective or usable exists in such 12-month period.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus“written communication” (as defined in Rule 405 under the Securities Act), other than any communication pursuant to Rule 134 under the Securities Act, any document constituting an offer to sell or solicitation of an offer to buy the Securities or the Exchange Securities that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of the Securities Act or a prospectus satisfying the requirements of Section 10(a) of the Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule 431 under the Securities Act.
(g) The additional interest provided for above shall be payable at the same times, in the same manner and to the same persons as ordinary interest on the Registrable Securities.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their its reasonable best efforts to (i) cause to be filed filed, an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Exchange Offer Registration Statement remain effective until the lesser of 180 days after the last closing of the Exchange Date for use by one or more Offer and the date on which all Participating Broker-DealersDealers have sold all Exchange Securities held by them. The Company and the Guarantors shall commence the Exchange Offer as promptly as practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in, is not engaged in and does not intend to engage in, the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will provide such information about itself and the Registrable Securities to be exchanged by it as may be reasonably requested by the Company and deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their 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 Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days 240th day after the Closing Date December 5, 2011, or (iii) upon receipt of the Company receives a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation representing, in its reasonable judgment based on advice of the Exchange Offer representing counsel (which may be internal or external counsel), that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their its reasonable best efforts to cause to be filed as soon as practicable after such determination, date or receipt of such Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, and if any Holder fails to deliver a completed and signed Notice and Questionnaire or provide such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof, in each case within a reasonable time (which time in no event shall exceed 30 days), then the Company may exclude such Holder’s Registrable Securities from such Shelf Registration Statement. Each Holder of Registrable Securities as to which any Registration Statement is being effected agrees to furnish promptly to the Company in writing all information required to be disclosed in order to make the information previously furnished by such Holder not materially misleading. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iiiSection 2(b)(iii) of the preceding sentenceabove, the Company and the Guarantors shall use their its reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date Registrable Securities cease to be Registrable Securities, or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable; provided that each Holder and Participating Broker-Dealer agrees with the Company that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus that is required to be filed pursuant to Rule 433 under the Securities Act in connection with the offer or sale of the Registrable Securities or the Exchange Securities without the prior written consent of the Company and, in connection with any Underwritten Offering, the underwriters. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that 240th day after December 5, 2011 (which 240th day is 270 days after the Closing Date (referred to as the “Target Registration Date”), the annual interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Target Registration Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum increase of 1.00% per annum, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annumSecurities Act. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-days commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by (ii) an additional 0.25% per annum with respect to each subsequent additional 90-day perioddays, up to a maximum increase of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable. For the avoidance of doubt, in the case that more than one basis for an increase in any interest rate pursuant to this Section 2(d) arises or exists at the same time, such interest rate increases will not be aggregated and instead the interest rate will be increased as if only one such basis exists. Following the cessation of such basis for increased interest, the accrual of such additional interest will cease.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 monetary damages may not be possible to measure damages for such injuries precisely and that, in adequate compensation. In the event of any such failure, the Initial Purchasers or any Holder Holder, in addition to being entitled to exercise all rights granted by law, including recovery of monetary damages, may seek to obtain such relief as may be required to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof. The parties hereto agree that the additional interest provided for in this Section 2 constitutes a reasonable estimate of and is intended to constitute the sole monetary damages that will be suffered by Holders of Registrable Securities by reason of the failure of the Shelf Registration Statement to become or remain effective or the Exchange Offer to be consummated, in each case to the extent required by this Agreement.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed prepare and file within 90 days after the date that the Securities are first issued an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) use its reasonable best efforts to cause such the Exchange Offer Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 under the Securities Act within 150 days after the last Securities are first issued.
(b) Promptly upon the effectiveness of the Exchange Date for use by one or more Participating Broker-Dealers. The Offer Registration Statement, the Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their its reasonable best efforts to complete the Exchange Offer not no later than 60 180 days after such effective datethe Securities are first issued. The Company shall use its reasonable best efforts to keep the Exchange Offer open for a period of not less than 20 Business Days (or longer, if required by applicable law) after the date on which the notice of the Exchange Offer is mailed to Holders of the Securities and to cause the Guarantors Exchange Offer Registration Statement to remain continuously effective under the Securities Act, supplemented and amended as required by the Securities Act until the closing of the Exchange Offer. The Company shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or exchanged.
(Bc) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that that:
(i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company Company, or any Guarantor if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable;
(ivii) if it is not a broker-dealer, it is not engaged in, and do not intend to engage in, the distribution of the Exchange Securities; and
(iii) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. ;
(iv) any Exchange Securities to be received by it will be acquired in the ordinary course of its business;
(v) at the time of the commencement of the Exchange Offer, it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act;
(vi) it is not acting on behalf of any person who could not truthfully make the foregoing representations.
(d) As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. .
(e) The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (if) In the event that the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a(i) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable date the Securities are issued, there is a change in law or applicable interpretations of the law by the Staff, and as a result, the Company determines upon the advice of its outside counsel that it is not permitted to effect the Exchange Offer as contemplated by this Agreement, (ii) any Holder of the Securities is not eligible to participate in the event that Exchange Offer, (iii) any Holder of the Securities participates in the Exchange Offer but does not receive freely tradable Exchange Notes, (iv) the Exchange Offer Registration Statement is not declared effective or the Exchange Offer is not for any other reason completed on or before consummated prior to the date that is 270 days after the Closing Date dates specified in this Agreement, or (iiiv) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable so requests with respect to Securities that are or were ineligible not eligible to be exchanged for Exchange Securities in the Exchange offer and that are held by it following consummation of the Exchange Offer, the Company and is requested to do so by any Initial Purchaser, the Guarantors Company shall use their reasonable best efforts to promptly file or cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and shall use its reasonable best efforts to have such Shelf Registration Statement become effective. declared effective by the SEC.
(g) In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentenceStatement, the Company shall promptly file a Shelf Registration Statement with the SEC after such obligation arises and the Guarantors shall thereafter use their its reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a cause the Shelf Registration Statement (which may to be a combined Registration Statement with declared effective by the Exchange Offer Registration Statement) with respect SEC as promptly as reasonably practicable after filing, but no later than the 210 days after the Securities are first issued; provided, however, that no Holder shall be entitled to offers and sales of Registrable have the Securities held by the Initial Purchasers after completion it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all of the Exchange Offerprovisions of this Agreement applicable to such Holder. The Company and the Guarantors agree to shall use their its reasonable best efforts to keep the Shelf Registration Statement continuously effective until effective, supplemented and amended as required by the earlier Securities Act for a period of (i) one year two years after the initial effectiveness of date the Shelf Registration Statement and (ii) the date is declared effective, or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been are sold pursuant to the Shelf Registration Statement thereunder or are already freely tradable (the “Shelf Effectiveness Period”). .
(h) The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their its reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree agrees to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its it has being used or filed with the SEC.
(ci) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b2(a)-(h) hereof. 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.
(dj) An Exchange Offer Registration Statement pursuant to Section 2(a2(a)-(e) hereof or a Shelf Registration Statement pursuant to Section 2(f)-(h) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A .
(k) If (i) the Exchange Offer Registration Statement is not filed prior to the date specified in Section 2(a)(i), (ii) the Exchange Offer Registration Statement or the Shelf Registration Statement pursuant to Section 2(b) hereof will Statement, as the case may be, is not be deemed to have become effective unless it has been declared effective by prior to the SEC date specified in Section 2(a)(ii) or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either Section 2(g)(ii), respectively, (iii) the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”specified in Section 2(b), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (yiv) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness PeriodPeriod (each such event referred to in clauses (i) through (iv), and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month perioda “Registration Default”), then the Company shall pay additional interest rate on to each Holder of the Registrable Securities will be increased by equal to 0.25% per annum commencing (in addition to the stated interest on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(dSecurities) hereof) in such 12-month period for during the first 90-day period immediately following the occurrence of each Registration Default from and including the date on which any such Registration Default shall occur to but excluding the date and on which all such Registration Defaults have been cured, which amount of additional interest shall increase by an additional 0.25% per annum with respect to for each subsequent 90-day periodperiod that a Registration Default remains uncured; however, up to a maximum in no event shall the rate of 1.00additional interest exceed 0.50% per annumannum (“Additional Interest”); provided that, and ending on such date that notwithstanding Section 2(k)(iv) hereof, upon the occurrence of an event contemplated by Section 3(a)(v)(5) or the happening of any material pending corporate development or other similar event that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement has again become effective and use of the related Prospectus or the disclosure of any such material non-public information would, in the reasonable discretion of the Company, have a material adverse effect on the Company and its subsidiaries taken as a whole, the Company shall have the right to suspend the availability of the Shelf Registration Statement or the use of the Prospectus again becomes usablecontained therein, and any such suspensions will not constitute a Registration Default so long as the aggregate period of any such suspension shall not exceed 45 days in any 3-month period or an aggregate of 90 days in any 12-month period. Any Additional Interest will accrue only for those days that a Registration Default occurs and is continuing. The Company shall notify the Trustee and the paying agent under the Indenture immediately upon the happening of each and every Registration Default and, to the extent the Company is obligated to pay any Additional Interest, shall provide to the Trustee and paying agent, at the applicable Record Date (as defined in the Indenture), a computation of the Additional Interest due. All accrued Additional Interest will be paid to the Holders of the Securities in the same manner as interest payments on the Securities, with payments being made on the interest payment dates for the Securities. Following the cure of all Registration Defaults, no more Additional Interest will accrue. No Additional Interest will accrue on any Securities if the Holder of such Securities was, at any time while the Exchange Offer was pending, eligible to exchange, but did not validly tender, the Securities for exchange in the Exchange Offer.
(el) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their its obligations under Section 2(a) and Section 2(b2(a)-(h) 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b2(a)-(h) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 210 days after the last closing of the Exchange Date for use by one or more Participating Broker-DealersOffer. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “"affiliate” " (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by February 14, 2005 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation shall so request in connection with any offer or sale of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange OfferSecurities, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Requestrequest, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectivedeclared effective by the SEC. In the event that the Company and the Guarantors are is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree agrees to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “"Shelf Effectiveness Period”"). The Company and the Guarantors further agree agrees to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors agree 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 's Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities ActSEC. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereofhereby, has is not become declared effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)February 14, 2005, the interest rate on the Registrable Securities will be increased by (i) 0.251.00% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become is declared effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective SEC or the second anniversary of Securities become freely tradable under the Closing Date, up to a maximum increase of 1.00% per annumSecurities Act. If the Shelf Registration Statement, if required hereby, has become been declared effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, usable at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, unless such failure to remain effective or usable relates or is directly attributable to an acquisition being undertaken by the Company, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge acknowledges that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ 's obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (ix) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective Securities and (iiiy) have such Registration Statement become and remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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, 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(iI) accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and
(iiII) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Target Registration Date or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof; provided, further, that no Initial Purchaser will be entitled to make a Shelf Request prior to December 27, 2015, and no Initial Purchaser shall request that a Shelf Registration Statement be declared effective prior to that time that the Exchange Offer is required to be commenced in accordance with the terms of this Agreement. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Securities cease to be Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Participating Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf If a Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”)Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following the Target such Registration Date Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the Exchange Offer is completed or the Shelf date such Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing DateDefault ends, up to a maximum increase of 1.00% per annum. In A Registration Default ends when the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required Securities cease to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by or, if earlier, (1) in the case of a Registration Default under clause (i) 0.25% per annum for of the first 90-day period payable commencing from definition thereof, when the Shelf Additional Interest Date and Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) an additional 0.25% per annum with respect to each subsequent 90-day periodor clause (iii) of the definition thereof, in each case until when the Shelf Registration Statement becomes effective or (3) in the second anniversary case of a Registration Default under clause (iv) or clause (v) of the Closing Datedefinition thereof, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that when the Shelf Registration Statement has again become becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) to cause such Registration Registra- tion Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after at the last Exchange Date for use by one or more Participating Broker-Dealersearliest possible time under the Securities Act. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable best efforts to complete the Exchange Offer not later than 60 365 days after such effective datethe Issue Date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor Company, (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 Exchange Notes and (ivv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and and
(iii) issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before 365th day after the Issue Date; provided, however, that if such day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be completed not later than the next successive Business Day, (iii) upon receipt of a Holder’s request, with respect to any Holder of Registrable Securities that (A) 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 (B) is a broker-dealer and holds Securities acquired directly from the Company or one of its affiliates or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange that is 270 days after may be sold without restriction under state and federal securities laws (other than due solely to the Closing Date status of such Holder as an affiliate of the Company or within the meaning of the Securities Act) or (iiiv) upon receipt of a written request (a “Shelf Request”” ) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their commercially reasonable best efforts to cause to be filed as soon as practicable after such determination, determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectiveHolder’s thereof. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iiiiv) of the preceding sentence, the Company and the Guarantors shall use their commercially reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to (A) cause the Shelf Registration Statement to be declared effective under the Securities Act and (B) keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness of the Shelf Registration Statement and or (ii) the date when all of the Registrable Securities covered by the are registered under such Shelf Registration Statement have been sold pursuant to the and are disposed of in accordance with such Shelf Registration Statement or cease to be outstanding or on the date upon which all notes covered by such shelf registration statement become eligible for resale without regard to volume, manner of sale or other restrictions contained in Rule 144 (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors agree to furnish to the Holders Holder’s of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 Exchange Offer Registration Statement or Shelf Registration StatementStatement and any fees and disbursements of counsel or experts retained by such Holder in connection with any registration pursuant hereto (other than any such fees and disbursements included within the definition of Registration Expenses and paid for by the Company and the Guarantors in accordance with the terms of this Agreement).
(d) A Holder that sells Registrable Securities pursuant to the Shelf Registration Statement will be required to be named as a selling security holder in the related Prospectus and to deliver a Prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of this agreement that are applicable to such a Holder (including certain indemnification rights and obligations).
(e) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. .
(f) In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i), 2(b)(ii) or 2(b)(ii2(b)(iii) hereof, has does not become effective on or prior to the date that is 270 days 365th day after the Closing Issue Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-90 day period immediately following the Target Registration Date and (ii) by an additional 0.25% per annum with respect to each subsequent 90-90 day period, up to a maximum of 1.00% per annum, until the earliest of the Exchange Offer being completed, the Shelf Registration Statement, if required hereby, becoming effective and the date on which all Securities cease to be Registrable Securities; provided that the obligation of the Company and the Guarantors to pay such additional interest in each any such case until shall be the sole and exclusive monetary remedy of the Initial Purchasers and the Holder’s in the event that the Exchange Offer is not completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii2(b)(i), and the Shelf Registration Statement required to be filed thereby has 2(b)(ii) or 2(b)(iii) hereof, does not become effective by on or prior to the later of Target Registration Date.
(xg) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to If a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during prior to the Shelf Effectiveness Periodsecond anniversary of the Issue Date (other than after such time as all Exchanged Securities have been disposed thereunder), and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month periodperiod (such 30th day, the “Shelf Trigger Date”), then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-90 day period immediately following such date and by an additional 0.25% per annum with respect to each subsequent 90-90 day period, up to a maximum increase of 1.00% per annum, commencing on the day immediately following the Shelf Trigger Date and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable, as the case may be.
(eh) For the avoidance of doubt, an increase of the interest rate on the Registrable Securities may not accrue under each of Section 2(e) and Section 2(f) at any one time, and in the case that more than one basis for an increase in any interest rate pursuant to this Section 2(g) arises or exists under Section 2(e) and Section 2(f), such interest rate increase will not be aggregated and instead the interest rate will be increased as if only one such basis exists. Following the cessation of such basis for increased interest, the accrual of such additional interest will cease only when no other basis for any increase continues to exist.
(i) Without limiting the remedies available to the Initial Purchasers and the HoldersHolder’s, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders Holder’s 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 Company’s Companys and the Guarantors’ Guarantors obligations under Section 2(a) and Section 2(b) hereof.
(f) . The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing ProspectusProspectus other than any written communication relating to or that contains solely the terms of the Exchange Offer and/or other information that was included in the Registration Statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Grifols Germany GmbH)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their commercially reasonable best efforts to (i) cause to be filed an have the Exchange Offer Registration Statement covering an offer completed on or prior to the Holders to exchange all the Registrable Securities for Exchange Securities, (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 270 calendar days after the last Exchange Date for use by one or more Participating Broker-DealersClosing Date. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is has been declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;
(ii) the dates date of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange DatesDate”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; provided however, that if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how such surrender is to be effected in accordance with applicable book-entry procedures; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securitiesexchanged. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange SecuritiesRestricted Holder. As soon as reasonably practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in aggregate principal amount to the aggregate principal amount of the Registrable Securities tendered surrendered by such Holder. The Company and the Guarantors shall use their commercially reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditionsconditions not contemplated hereby, other than that the Exchange Offer does not violate any applicable law or applicable interpretations interpretation of the Staff. 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 commercially reasonable 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 the 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 reasonably 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. The Exchange Offer will be deemed to have been “completed” only if the Exchange Securities received by Holders, other than Restricted Holders, in the Exchange Offer in exchange for Registrable Securities are, upon receipt, transferable by each such Holder without restriction under the Securities Act and the Exchange Act and without material restrictions under the blue sky or securities laws of a substantial majority of the states of the United States of America (including any state specified pursuant to Section 3(a)(iv)). The Exchange Offer shall be deemed to have been completed when the Company has exchanged the Exchange Securities for all outstanding Registrable Securities properly tendered and not withdrawn before the expiration of the Exchange Offer pursuant to the Exchange Offer.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations interpretation of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before prior to the date that is 270 days 270th calendar day after the Closing Date Date, or (iii) the Initial Purchaser, based upon receipt the reasonable advice of a written request (a “Shelf Request”) from any counsel for the Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds is not permitted to exchange Registrable Securities that are or were ineligible to be exchanged in the held by it for Exchange OfferSecurities, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, so request a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and thereof, use their commercially reasonable efforts to have such Shelf Registration Statement become effectivedeclared effective by the SEC as soon as reasonably practicable after such filing obligation arises and use their commercially reasonable efforts to keep effective the Shelf Registration Statement until two years after the Closing Date (or such shorter period that will terminate when all of the Registrable Securities covered thereby have been exchanged or sold pursuant thereto or in certain other circumstances). In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall file and use their commercially reasonable best efforts to file and have become 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 Initial Purchasers Purchaser after completion of the Exchange Offer. The Company and the Guarantors agree to use their commercially reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are no longer outstanding (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable Securities with respect to correct information relating to such Holder, and to use their commercially reasonable best efforts to cause any such amendment to become effective, if required, effective and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay promptly all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A 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 or is automatically (unless such Registration Statement, under applicable SEC rules, becomes immediately effective upon filing thereof). The Company, each Guarantor and the Initial Purchaser 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. Accordingly, the SEC as provided by Rule 462 under the Securities Act. In Company and each Guarantor agree that in the event that either that:
(i) the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 calendar days after the Closing Date (the an “Target Exchange Offer Registration DateDefault”); or
(ii) (A) a Shelf Registration Statement is not filed with the SEC or declared effective when required pursuant to Section 2(b) or (B) a Registration Statement is declared effective as required pursuant to Section 2 but thereafter fails to remain effective or usable in connection with resales for more than 60 consecutive calendar days (a “Shelf Registration Default”); then the Company and the Guarantors hereby agree to pay each Holder of Registrable Securities affected thereby, the interest rate liquidated damages (“Liquidated Damages”). Liquidated Damages will accrue daily on the affected Registrable Securities Securities. The rate of Liquidated Damages will be increased by (i) 0.25% per annum of the principal amount of Registrable Securities held by such Holder for the first 90-day period immediately following the Target Registration Date and (ii) occurrence of an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed Registration Default or the Shelf Registration StatementDefault, if required herebyas applicable, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective increasing by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that in each case until (x) with respect to a Registration Default, the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, is declared effective by the SEC or the Securities become freely tradeable under the Securities Act (which shall include, without limitation, an effective Shelf Registration Statement relating to the Registrable Securities) or (y) with respect to a Shelf Registration Default, the Shelf Registration Statement has again become been declared effective or the Prospectus again becomes usable. All accrued Liquidated Damages shall be paid in cash by the Company on each Interest Payment Date (as defined in the Indenture). Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable shall not increase because more than one Exchange Offer Registration Default has occurred and is pending and (2) a Holder of Registrable Securities or Exchange Securities who is not entitled to the benefits of the Shelf Registration Statement (i.e., such Holder has not elected to furnish information to the Company in accordance with Section 3(b) hereof) shall not be entitled to Liquidated Damages with respect to a Shelf Registration Default. Anything herein to the contrary notwithstanding, no Holder who (x) was eligible to exchange such Holder’s outstanding Securities at the time that the Exchange Offer was pending and consummated and (y) failed to validly tender such Securities for exchange pursuant to the Exchange Offer shall be entitled to receive any Liquidated Damages that would otherwise accrue subsequent to the Exchange Date.
(e) The Company shall notify the Trustee within 15 days 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 to Holders entitled thereto in addition to any other interest payable from time to time with respect to the Registrable Securities in cash semi-annually on the interest payment dates specified in the Indenture (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.
(f) Without limiting the remedies available to the Initial Purchasers Purchaser and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with their 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective date. Notwithstanding anything contained herein, the Company and the Guarantors shall not be required to make the Exchange Offer in any province or territory of Canada or to accept Registrable Securities surrendered by residents of Canada in the Exchange Offer unless the distribution of Exchange Securities pursuant to such offer can be effected pursuant to exemptions from the registration and prospectus requirements of the applicable securities laws of such province or territory of Canada. The Company and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents (and, in the case of Holders in Canada, any “wrapped” version thereof used in connection with the private placement of the Exchange Securities in Canada) to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before the date that is 270 days after the Closing Date by May 15, 2008 or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after the consummation of the Exchange Offer representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company and the Guarantors shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective. In the event that the Company and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after the initial effectiveness expiration of the Shelf Registration Statement and period referred to in Rule 144(k) (iior any similar rule then in force, but not Rule 144A) under the date Securities Act with respect to the Registrable Securities or for such shorter period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to supplement or amend the Shelf Registration Statement and the related Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Prospectus to become usable as soon as thereafter practicable. The 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 Company and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. 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 or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date May 15, 2008 (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date April 15, 2008 or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from one day after the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of Securities become freely tradable under the Closing DateSecurities Act, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.251.00% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the Company or the Guarantors to comply with 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 Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
Appears in 1 contract
Samples: Registration Rights Agreement (Symmetry Holdings Inc)
Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company and the Guarantors Guarantor shall use their reasonable best efforts to (i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities, Securities and (ii) cause such Registration Statement to become effective and (iii) have such Registration Statement remain effective until 180 days after the last Exchange Date for use by one or more Participating Broker-Dealers. The Company and the Guarantors Guarantor shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their reasonable best efforts to complete the Exchange Offer not later than 60 days after such effective datedate and, in any event, not later than the Target Registration Date. The Company and the Guarantors Guarantor shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly 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 not any additional interest pursuant to Section 2(d)) but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by (A) 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 its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities. As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company and the Guarantors Guarantor that (i) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (ii) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (iii) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or any Guarantor and (iv) if such Holder is a broker-broker- dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will provide such information as may be reasonably requested by the Company and deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities. As soon as practicable after the last Exchange Date, the Company and the Guarantors Guarantor shall:
(i) accept for exchange Registrable Securities or portions thereof validly tendered and not properly 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 Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder. The Company and the Guarantors Guarantor shall use their reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange 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 any applicable law or applicable interpretations of the Staff.
(b) (i) In the event that (i) the Company and the Guarantors Guarantor determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) in the event that the Exchange Offer is not for any other reason completed on or before by the date that is 270 days after the Closing Date or Target Registration Date, (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser within 30 days after prior to the 20th day following the consummation of the Exchange Offer from any Initial Purchaser representing that it holds Registrable Securities that that, on advice of counsel, are or were ineligible to be exchanged in the Exchange Offer, or (iv) upon receipt of written notice prior to the 20th day following the consummation of the Exchange Offer from any Holder (other than an Initial Purchaser) notifying the Company that, on advice of counsel, such Holder is or was ineligible to participate in the Exchange Offer or did not receive freely tradeable Exchange Securities in the Exchange Offer, other than by reason of such Holder being an affiliate (as defined in subsection (a)(1) of Rule 144 under the Securities Act) of the Company, the Guarantor or any of their respective affiliates (as defined in subsection (a)(1) of Rule 144 under the Securities Act), then the Company and the Guarantors Guarantor shall use their reasonable best efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effectiveeffective no later than 270 days after the Closing Date. In the event that the Company and the Guarantors Guarantor are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors Guarantor shall use their reasonable best efforts to file and have become effective 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 Initial Purchasers after completion of the Exchange Offer. The Subject to the fifth paragraph of Section 2(d) hereof, the Company and the Guarantors Guarantor agree to use their reasonable best efforts to keep the Shelf Registration Statement continuously effective until the earlier of (i) one year after date on which the initial effectiveness of the Shelf Registration Statement and (ii) the date when all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant cease to the Shelf Registration Statement be Registrable Securities (the “Shelf Effectiveness Period”). The Company and the Guarantors Guarantor further agree to supplement or amend the Shelf Registration Statement and Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their reasonable best efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement and Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company and the Guarantors 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 Company and the Guarantors Guarantor shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. 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 will not be deemed to have become effective unless it has been declared effective by the SEC. A or Shelf Registration Statement and any fees and disbursements of counsel or experts retained by such Holder in connection with any registration pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective hereto (other than any such fees and disbursements included within the definition of Registration Expenses and paid for by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act. In the event that either the Exchange Offer is not completed or the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or 2(b)(ii) hereof, has not become effective on or prior to the date that is 270 days after the Closing Date (the “Target Registration Date”), the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period immediately following the Target Registration Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is completed or the Shelf Registration Statement, if required hereby, becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. In the event that the Company receives a Shelf Request pursuant to Section 2(b)(iii), and the Shelf Registration Statement required to be filed thereby has not become effective by the later of (x) 240 days after the Closing Date or (y) 90 days after delivery of such Shelf Request (such later date, the “Shelf Additional Interest Date”), then the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period payable commencing from the Shelf Additional Interest Date and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until the Shelf Registration Statement becomes effective or the second anniversary of the Closing Date, up to a maximum increase of 1.00% per annum. If the Shelf Registration Statement, if required hereby, has become effective and thereafter either ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days, or, solely with respect to any suspension in accordance with Section 3(d) hereof, for more than 60 days (in either case, whether or not consecutive) in any 12-month period, then the interest rate on the Registrable Securities will be increased by 0.25% per annum commencing on the 31st day (or the 61st day with respect to any suspension in accordance with Section 3(d) hereof) in such 12-month period for the first 90-day period following such date and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, and ending on such date that the Shelf Registration Statement has again become effective or the Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by Guarantor in accordance with the Company or the Guarantors to comply with 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 terms of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company’s and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereofthis Agreement).
(f) The Company represents, warrants and covenants that it (including its agents and representatives) will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus.
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