Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations. (b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective. (c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period. (d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults. (e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable. (f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 3 contracts
Samples: Exchange and Registration Rights Agreement (Hd Supply, Inc.), Exchange and Registration Rights Agreement (Hd Supply, Inc.), Exchange and Registration Rights Agreement (Hd Supply, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuer and the Guarantor further agrees agree to use its commercially reasonable their best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Purchaser for any Securities acquired directly from the Company within Issuer and the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsGuarantor, the Company Issuer and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days in the case of clause (i) or (ii) and 90 days in the case of clause (iii) after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivehereof.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period Issuer or the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company Issuer and the Guarantors Guarantor shall each take all actions reasonably reasonable and necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonable and necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Each holder of Registrable Securities hereby acknowledges and agrees that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission's letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of Exchange Securities obtained by such holder in exchange for Registrable Securities acquired by such holder directly from the Issuer or one of its affiliates. Accordingly, the Issuer's obligation to accept for exchange a holder's Registrable Securities tendered in the Exchange Offer shall be conditioned upon such holder representing to the Issuer that, at the time of the consummation of the Exchange Offer:
(i) that any Exchange Securities received by such holder will be acquired in the ordinary course of such holder's business;
(ii) that such holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Registrable Securities acquired as a result of market making activities or other trading activities and acknowledges that such holder will deliver a prospectus in connection with any resale of the Exchange Securities.
Appears in 3 contracts
Samples: Exchange and Registration Rights Agreement (Berkshire Hathaway Inc), Exchange and Registration Rights Agreement (Berkshire Hathaway Inc), Exchange and Registration Rights Agreement (Berkshire Hathaway Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, within 210 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are guarantees shall be substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they shall have been registered pursuant to an effective registration statement under the Securities Act and do shall not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the Commission under the Exchange Act (or a longer period if required by applicable law the federal securities laws) and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agree, that upon request, they will (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed the Company determines, upon advice of outside counsel, that existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder resales, (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning or (D) it is an affiliate of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 210 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 270 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) for up to an aggregate of 60 which shall not exceed 45 days in any consecutive three-month period or 90 days in any twelve-month period (a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Shelf Registration Statement on or before the date on which such Shelf Registration Statement is required to be filed pursuant to Section 2(b), or (ii) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional or amended registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuingDefault Period. Following the cure of all Registration Defaults, the The accrual of Special Interest will cease. A shall be the sole and exclusive remedy available to the holders of Registrable Securities for any Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 3 contracts
Samples: Exchange and Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.), Exchange and Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.), Exchange and Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 150 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain specified transfer restrictions on transfer or and do not contain provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 no later than 240 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its all commercially reasonable efforts to commence consummate the Exchange Offer promptly no later than 20 business days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period at least 30 days, or longer, if required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business daysfederal securities laws, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If 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 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior the Company and the Guarantors are not permitted to consummate the time Exchange Offer because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities policy; or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following consummation of the Exchange Offer or that (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, was prohibited by law or Commission policy from participating in the Exchange Offer or Offer, (B) such holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to the status of such holder as is a broker-dealer and holds Registrable Securities acquired directly from the Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective all commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 30 days after the time such obligation to file arises (but no earlier than 150 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become be declared effective within by the Commission (unless it becomes effective automatically upon filing) on or prior to 90 days after the date on which the obligation to file filing of such Shelf Registration Statement arises (but no earlier than 240 days following the Closing Date) and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement continuously effective until the later of (A) the date on which no broker-dealer making a market in the Exchange Securities is deemed to remain effective for a period ending on be an affiliate of the Company and (B) the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the earlier time as there are no longer any Registrable Securities covered by outstanding (the “Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; Period”), provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall (A) relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required or the Guarantors to take any such action with respect to any such holders file more than once every quarterone post-effective amendment to the Shelf Registration Statement in any 45-day period. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. The Company shall not, without the prior written consent of the Purchasers, make any offer relating to the Securities that would constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act. Notwithstanding the foregoing, no broker-dealer that is an affiliate of the Company shall be required to give notice within the time period specified in the first sentence of this Section 2(b) in order to maintain its registration rights pursuant to this Section 2.
(c) Notwithstanding the foregoing, the Company may suspend issue a notice that the availability of any Shelf Registration Statement (x) is no longer effective or the prospectus included therein is no longer usable for up offers and sales of Registrable Securities covered by the Shelf Registration Statement for a period not to an aggregate of exceed 60 days in the aggregate in any consecutive twelve-month period (a “suspension period”) if (i) such action is required by applicable law law; or (ii) due to the existence of material non-public information, disclosure of such action is taken material non-public information would be required to make the statements contained in the applicable registration statement not misleading (including for the avoidance of doubt, the pendancy of an acquisition, disposition or public or private offering by the Company), and the Company in good faith and has a bona fide business purpose for valid business reasons preserving as confidential such material non-public information (not including other than avoidance of the Company’s its obligations hereunder); provided that (x) as determined by the board of directors of the Company or an authorized committee thereof, including promptly thereafter complies with the acquisition or divestiture requirements of assets, or Section 3(d) hereof and (y) with respect to a the required period of effectiveness for the Shelf Registration Period set forth in Section 2(b) hereof shall be extended by the number of days during which such Shelf Registration Statement required was not effective or usable pursuant to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveforegoing provisions.
(cd) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 60 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”) (such Special Interest to be calculated by the Company), in addition to the Base Interest, shall accrue on in an amount equal to $.05 per week per $1,000 principal amount of Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until held by such time as all Registration Defaults have been cured at a per annum rate of 0.25% holder for the first 90 days of the Registration Default Period, which rate . The amount of Special Interest shall increase by an additional 0.25% during $.05 per week per $1,000 principal amount of Registrable Securities with respect to each subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will cease. A for all Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Defaults of the Exchange Offer in the case $.20 per week per $1,000 principal amount of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration DefaultsRegistrable Securities.
(e) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonably necessary or desirable advisable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Accellent Inc), Exchange and Registration Rights Agreement (Accellent Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuer and the Guarantor further agrees agree to use its commercially reasonable their best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Purchaser for any Securities acquired directly from the Company within Issuer and the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsGuarantor, the Company Issuer and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days in the case of clause (i) or (ii) and 90 days in the case of clause (iii) after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivehereof.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period Issuer or the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company Issuer and the Guarantors Guarantor shall each take all actions reasonably reasonable and necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonable and necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Each holder of Registrable Securities hereby acknowledges and agrees that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Mxxxxx Sxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Sxxxxxxx & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of Exchange Securities obtained by such holder in exchange for Registrable Securities acquired by such holder directly from the Issuer or one of its affiliates. Accordingly, the Issuer’s obligation to accept for exchange a holder’s Registrable Securities tendered in the Exchange Offer shall be conditioned upon such holder representing to the Issuer that, at the time of the consummation of the Exchange Offer:
(i) that any Exchange Securities received by such holder will be acquired in the ordinary course of such holder’s business;
(ii) that such holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Registrable Securities acquired as a result of market making activities or other trading activities and acknowledges that such holder will deliver a prospectus in connection with any resale of the Exchange Securities.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Berkshire Hathaway Inc), Exchange and Registration Rights Agreement (Berkshire Hathaway Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree Guarantor each agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 60 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuingDefault Period. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required cease to be filed due to a failure to consummate the Exchange Offer within the required accrue at such time periodwhen there are no longer any Registrable Securities.
(d) If during the 90 day period referenced in the final sentence Each of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors Guarantor shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Heinz Hj Finance Co), Exchange and Registration Rights Agreement (Heinz Hj Finance Co)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 150 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, Guarantors which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 30 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating ; provided, however, that in the Exchange Offer shall be required to represent to either case, the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not receives written notice from a broker-dealer, dealer that 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 it will receive Exchange Securities for its own account in exchange for dealer holds Registrable Securities that were acquired for the account of such broker-dealer as a result of market-market making activities or other trading activities similar activities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (other than Securities acquired directly from the Company or any of its affiliatesc), (d) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 240 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"); provided, however, that nothing in this Section 2(b) shall require the filing of a Shelf Registration Statement prior to the filing deadline for the Exchange Registration Statement. The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 60 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the written request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to use its reasonable best efforts to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding After such Shelf Registration Statement has been declared effective by the foregoingCommission, the Company may suspend shall not be obligated to amend or supplement it more than one time per quarterly period for the availability sole purpose of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivenaming additional holders.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 30 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced succeeded within 90 five business days by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all reasonable actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Imc Global Inc), Exchange and Registration Rights Agreement (Imc Global Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act as soon as practicable, but in no event later than 60 days following the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is are substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 at the earliest possible time, but in no event later than 180 days after following the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly on the earliest practicable date, but no later than 30 Business Days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 20 Business Days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 business Offer, which shall be on a date that is at least 20 days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableon or prior to 45 days after such filing obligation arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within on or prior to 90 days after following the date on which the obligation to file filing of such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, registration and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days after 30 Business Days following the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on in an amount equal to $0.05 per week per $1,000 in principal amount at maturity of Registrable Securities for each week or portion thereof that the Registration Default Period (but only continues for the first 90-day period immediately following the occurrence of such Registration Default. The amount of the liquidated damages shall increase by an additional $0.05 per week per $1,000 in principal amount at maturity of Registrable Securities with respect to one Registration Default at any particular time) each subsequent 90-day period until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day periodcured, up to a maximum amount of 0.50% regardless of the number of liquidated damages for all Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual $.50 per week per $1,000 in principal amount at maturity of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodRegistrable Securities.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Crown Castle International Corp), Exchange and Registration Rights Agreement (Crown Castle International Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts Issuer agrees to file under the Securities Act Act, no later than 180 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the Guarantors, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree Issuer agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 90 days after the Closing Datefiling of the Exchange Registration Statement (or 180 days if the Exchange Registration Statement is subject to review by the Commission). The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuer further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 business days after Offer, which shall be on a date that is at least 20 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree Issuer agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date (or 360 days if the Exchange Registration Statement is subject to review by the Commission) and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuer prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or offer that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in if the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Issuer or an affiliate of the Company within Issuer, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company Issuer and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 180 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree Issuer agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (or 180 days if the Shelf Registration Statement is subject to review by the Commission, but no earlier than 270 days, or 360 days, as applicable, after the date of the Indenture); provided that if at any time the Issuer is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuer and the Guarantors shall file the Exchange Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuer agrees to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Issuer agrees, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuer or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the The accrual of Special Interest will cease. A shall be the exclusive monetary remedy available to the holders of Registrable Securities for any Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer The Issuer shall take, and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonably necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or Section 2(b) hereof), as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (VWR Funding, Inc.), Exchange and Registration Rights Agreement (VWR Funding, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Trust agree to use their respective commercially reasonable best efforts to file under the Securities Act within 150 days after the Closing Date, a registration statement (the "Exchange Offer Registration Statement") relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt capital securities issued by the Company Trust and guaranteed by the GuarantorsCompany and underlying junior subordinated interest debentures of the Company, which debt securities capital securities, guarantee and Guarantees debentures are substantially identical to the Securities Capital Securities, the Guarantee and the related GuaranteesDebentures, respectively (and are entitled to the benefits of a trust indenture indentures which is substantially identical to the Indenture or is the Indenture and which has have been qualified under the Trust Indenture Act), ) except that they have been registered pursuant to an effective registration statement under the Securities Act and Act, do not contain restrictions on transfer or transfers and do not contain provisions for the additional interest and additional distributions contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors Trust agree to use their respective commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Trust further agrees agree to use its commercially their reasonable best efforts to commence and complete the Exchange Offer promptly after the Exchange Offer Registration Statement becomes has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If 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 for 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences and the Trust having exchanged the Exchange Securities for all outstanding Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Trust, agree (x) to include in the Exchange Registration Statement registration statement a prospectus for use in connection with any resales by any holder of Exchange Securities by a holder that is a broker-dealer, other than resales of Exchange Securities received by a broker-dealer pursuant to the Exchange Offer in exchange for Registrable Securities acquired by such broker-dealer directly from the Trust, and (y) to keep such the Exchange Offer Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of (i) either (a) the expiration of the 90th 180th day after the Exchange Offer has been completed or (b) in the event the Company and the Trust have at any time notified any broker-dealers pursuant to Section 3(f)(iii) hereof, the day beyond the 180th day after the Exchange Offer has been completed that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Trust give notice pursuant to Section 3(f)(iii)(F) hereof to and including the date when broker-dealers receive an amended or supplemented prospectus necessary to permit resales of Exchange Securities or to and including the date on which the Company and the Trust give notice that the resale of Exchange Securities under the Exchange Offer Registration Statement may resume or (ii) such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required With respect to represent to the Company such registration statement, each broker-dealer that (i) any holds Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the an Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Registerable Securities that were not acquired as a result of market-making activities or other trading activities (other than Securities acquired by it directly from the Company or any shall have the benefit of its affiliates) the rights of indemnification and that it will deliver a prospectus contribution set forth in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsSection 6 hereof.
(b) If (i) on or prior to the time consummation of the Exchange Offer is consummated existing applicable law or Commission interpretations are changed such that the Exchange Securities or capital securities, related guarantee of the related Guarantees Company and underlying debentures of the Company to be received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has Registration Statement is not been completed declared effective within 360 180 days following of the Closing Date, (iii) any Initial Purchaser so requests with respect the Company has received an opinion of counsel, rendered by a law firm having a recognized national tax practice, to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following effect that, as a result of the consummation of the Exchange Offer Offer, there is more than an insubstantial risk that (a) the Trust is, or will be, subject to United States federal income tax with respect to income received or accrued on the Debentures, (b) interest payable by the Company on the Debentures is not, or will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes, or (ivc) any holder (other than an Initial Purchaser) shall the Trust is, or will be, and shall notify the Company that such holder issubject to more than a DE MINIMIS amount of other taxes, prohibited by law duties or Commission policy from participating other governmental charges, then in the Exchange Offer addition to or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to the Company and the Trust shall file under the Securities Act as promptly as reasonably practicable, practicable a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filingthe "Shelf Registration"). The Administrators will promptly deliver to the holders of the Capital Securities, the “Shelf Registration” Property Trustee and such registration statementthe Delaware Trustee, or the “Shelf Registration Statement”Company will promptly deliver to the holders of the Debentures, if not the Trust, written notice that the Company and the Trust will be complying with the provisions of this Section 2(b). The Company and the Guarantors Trust agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 days after the date on which the obligation and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (i) either (x) the first third anniversary of the Effective Time Closing Date or such shorter period that will terminate when all (y) in the Registrable Securities covered by event the Shelf Registration Statement Company and the Trust have been sold pursuant to at any time suspended the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) use of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder prospectus contained in the Shelf Registration Statement or pursuant to use Section 3(c) hereof, the prospectus forming a part thereof for resales date beyond the third anniversary of the Closing Date that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Trust give notice of such suspension pursuant to Section 3(c) to and including the date when holders of Registrable Securities unless such holder is receive an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of amended or supplemented prospectus necessary to permit resales as Registrable Securities that is not then an Electing Holder under the Registration Shelf or to take any action reasonably necessary to identify such holder as a selling securityholder in and including the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to date on which the Company in accordance with Section 3(d)(iii) hereof and Trust give notice that the resale to Registrable Securities may resume or (ii) the Company shall not be required to take such time as there are no longer any such action with respect to any such holders more than once every quarterRegistrable Securities outstanding. The Company and the Trust further agrees agree to supplement or make amendments to the Shelf Registration StatementRegistration, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company and the Trust for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees and the Trust agree to furnish to each Electing Holder the holders of the Registrable Securities copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The If the Company or the Trust fail to comply with this Registration Rights Agreement or if the Exchange Offer Registration Statement or the Shelf Registration Statement fails to become effective (any such event a "Registration Default"), then, as liquidated damages, registration default interest (the "Registration Default Interest") shall become payable in respect of the Debentures, and corresponding registration default Distributions (the Initial Purchasers agree "Registration Default Distributions"), shall become payable on the Trust Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement is filed with the Commission on or prior to the 150th day after the Closing Date or (B) notwithstanding that the holders of Registrable Securities will suffer damages if the Company and the Guarantors fail Trust have consummated or will consummate an Exchange Offer, the Company and the Trust are required to fulfill their obligations under file a Shelf Registration and such Shelf Registration is not filed on or prior to the date required by this Section 2 Registration Rights Agreement, then commencing on the day after either such required filing date, Registration Default Interest shall accrue on the principal amount of the Debentures, and that it would not be feasible to ascertain Registration Default Distributions shall accumulate on the extent Liquidation Amount of such damages with precision. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing DateTrust Securities, or each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement is declared effective by the Commission on or prior to the 30th day after the applicable required filing date or (B) notwithstanding that the Company and the Trust have consummated or will consummate an Exchange Offer, the Company and the Issuer are required to be filed under Section 2(b) hereof file a Shelf Registration and such Shelf Registration is not declared effective by the Commission on or before 90 days prior to the 30th day after the date such Shelf Registration was required to be filed, then commencing on the 31st day after the applicable required filing date, Registration Default Interest shall accrue on the principal amount of the Debentures, and Registration Default Distributions shall accumulate on the Liquidation Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(iii) if (A) the Trust and the Company have not exchanged Exchange Securities for all Securities validly tendered, in accordance with the terms of the Exchange Offer on or prior to the 30th day after the date on which the obligation to file Exchange Offer Registration Statement was declared effective or (B) if applicable, the Shelf Registration Statement arises, or (iii) if any has been declared effective and such Shelf Registration Statement required by Section 2(b) hereof is filed and declared effectiveceases to be effective at any time prior to the third anniversary of the Closing Date (other than after such time as there are no longer any Registrable Securities), then Registration Default Interest shall accrue on the principal amount of Debentures, and during Registration Default Distributions shall accumulate on the period Liquidation Amount of the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effectiveTrust Securities, each at a rate of 0.25% per annum commencing on (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days 31st day after such effective date, in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability case of the Shelf Registration Statement (A) above, or (y) the day such Shelf Registration Statement shall cease ceases to be effective in the case of (other than by action B) above; PROVIDED, HOWEVER, that neither the Registration Default Interest rate on the Debentures, nor the Registration Default Distributions rate on the Liquidation Amount of the Company pursuant to Trust Securities, shall exceed in the second paragraph aggregate 0.25% per annum; PROVIDED, FURTHER, HOWEVER, that (1) upon the filing of Section 2(b) hereof) without being replaced within 90 days by the Exchange Offer Registration Statement or a shelf registration statement that is filed and declared effective Shelf Registration (each such event referred to in clauses the case of clause (i) through (iiiabove), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to 2) upon the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days effectiveness of the Exchange Offer Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to Statement or a maximum Shelf Registration (in the case of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) above), or (iii3) will be deemed cured upon consummation the exchange of the Exchange Offer Securities for all securities tendered (in the case of a clause (iii) (A) above), or upon the effectiveness of the Shelf Registration Statement required which had ceased to be filed due remain effective (in the case of clause (iii) (B) above), Registration Default Interest on the Debentures, and Registration Default Distributions on the Liquidation Amount of the Trust Securities as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to a failure to consummate the Exchange Offer within the required time periodaccrue.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, incorporated therein by reference as of such time the applicable Effective Time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, incorporated therein by reference as of a time after such timeEffective Time.
(e) Notwithstanding any other provisions of this Registration Rights Agreement, in the event that Debentures are distributed to holders of Capital Securities in liquidation of the Trust pursuant to the Trust Agreement (a) all references in this Section 2 and Section 3 to Securities, Registrable Securities and Exchange Securities shall not include the Capital Securities and Guarantee or Capital Securities and Guarantee issued or to be issued in exchange therefor in the Exchange Offer, (ii) all requirements for action to be taken by the Trust in this Section 2 and Section 3 shall cease to apply and all requirements for action to be taken by the Company in this Section 2 and Section 3 shall apply to Debentures and Debentures issued or to be issued in exchange therefor in the Exchange Offer.
Appears in 2 contracts
Samples: Registration Rights Agreement (First Union Corp), Registration Rights Agreement (First Union Institutional Capital Ii)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agree, on or prior to use their respective commercially reasonable efforts 240 days after the Closing Date, to file under the Securities Act a registration statement on an appropriate form relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities Notes for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, Guarantors which debt securities and Guarantees guarantees are substantially identical to the Securities Notes and the related Guarantees, respectively Guarantees (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities securities, together with such guarantees, hereinafter called “Exchange Securities”). The Exchange Securities will be issued as evidence of the same continuing indebtedness of the Company and will not constitute the creation of new indebtedness. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 on or prior to 420 days after the Closing Date. The Exchange Offer will be registered under Company and the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Guarantors further agrees agree to use its their commercially reasonable efforts to commence and complete the Exchange Offer promptly on or prior to 45 business days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 not less than 20 business days, days and exchange the Exchange Securities for all Registrable Transfer Restricted Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If 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 for Transfer Restricted Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and without material restrictions under blue sky or securities laws of a substantial majority of the States of the United States. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Transfer Restricted Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Transfer Restricted Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is not less than 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer that has acquired such Transfer Restricted Securities for its own account as a result of market-making activities or other trading activities and not directly from the Company or any Guarantor, and (y) to use commercially reasonable efforts to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Transfer Restricted Securities, other than Transfer Restricted Securities acquired from the Company. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed, existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Transfer Restricted Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, applicable time period set forth in section 2(a) hereof or (iii) the Exchange Offer is not available to any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange holder of the Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder United States (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsRestricted Holders), the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under with the Securities Act as promptly as reasonably practicableCommission, a “shelf” registration statement on an appropriate form providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Transfer Restricted Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 on or prior to 420 days after the date on which the obligation Closing Date and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or such shorter period that will terminate when all the Registrable time as there are no longer any Transfer Restricted Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Transfer Restricted Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Transfer Restricted Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company and the Guarantors in accordance with Section 3(d)(iii3(b)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees and the Guarantors agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer Registration Statement has not been filed with the Commission on or prior to the date that such registration statement is required to be filed pursuant to Section 2(a), or (ii) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or prior to the date that such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 business days after the Closing Dateinitial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made), or (iiiv) if a Shelf any Exchange Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and effective but thereafter ceases to be effective or usable in connection with resales of Transfer Restricted Securities during the period time periods specified herein, or (v) the Company and the Guarantors are required require holders to use refrain from disposing of their respective commercially reasonable efforts to cause Securities or Exchange Securities under the Shelf Registration Statement to remain effective, (xcircumstances described in Section 3(g) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 and that suspension period exceeds 45 days in one instance or 90 days in the aggregate in during any consecutive twelve12-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages the sole remedy for such Registration Default, special additional interest (“Special Additional Interest”), in addition to the Base Interest, shall accrue on Registrable the Notes that are Transfer Restricted Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for with respect to the first 90 days 90-day period immediately following the occurrence of the first Registration Default Period, which rate shall Default. The amount of the Additional Interest will increase by an additional per annum rate of 0.25% during with respect to each subsequent 90-90 day periodRegistration Default Period until all Registration Defaults have been cured, up to a maximum per annum rate of 0.50% regardless of the number of for all Registration Defaults that shall have occurred and be continuingDefaults. Following the cure of all Registration Defaults, the accrual of Special Additional Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of The Company and the Exchange Offer Guarantors shall pay all Additional Interest, if any, in the case of a Shelf Registration Statement required to be filed due to a failure to consummate manner and on the Exchange Offer within dates specified in the required time periodIndenture.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall use their commercially reasonable efforts to take all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated. Such actions may include amending and supplementing the prospectus and amending the Exchange Registration Statement or Shelf Registration Statement if required by the rules, including all actions necessary regulations or desirable instructions applicable to register the Guarantees under the registration statement contemplated in Section 2(a) form used by the Company and the Guarantors for such Exchange Registration Statement or 2(b) hereof, as applicableShelf Registration Statement.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) The Company and the Guarantors will (i) cause any Exchange Registration Statement and Shelf Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto to comply in all material respects with the Securities Act and the rules and regulations thereunder, (ii) cause any Exchange Registration Statement and Shelf Registration Statement and any amendment thereto, when it becomes effective, not to contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Registration Statement or Shelf Registration Statement, and any supplement to such prospectus, not to include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Registration Rights Agreement (Yamana Gold Inc.), Registration Rights Agreement (Yamana Argentina Holdings B.V.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to file under the Securities Act Act, within 150 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantors (if any), which debt securities and Guarantees guarantees (if any) are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 240 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effectivepromptly, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or and such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 270 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial a Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially its reasonable best efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become effective within 90 150 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially its reasonable best efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first second anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be become eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company for resale pursuant to Rule 144 without volume restriction, if any; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 30 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer the Company has not been consummated within 360 filed the Exchange Registration Statement or a Shelf Registration Statement (applicable to all of the Registrable Securities) on or before 150 days after the Closing Date, or (ii) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before 240 days after the Closing Date, or (iii) the Exchange Offer has not been consummated within 270 days after the Closing Date, or (iv) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 150 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are is required to use their respective commercially its reasonable best efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 30 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 60 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iiiv) or (iiiv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final penultimate sentence of the first paragraph of Section 2(a) hereof the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees (if any) under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (VWR International, Inc.), Exchange and Registration Rights Agreement (VWR International, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Issuers agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuers and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors Issuers agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 360 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuers further agrees agree to use its their commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences Issuers commence the Exchange Offer, the Company Issuers will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has Issuers have accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Issuers agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or and such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company Issuers that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicableIssuers, (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, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (New Sally Holdings, Inc.), Exchange and Registration Rights Agreement (New Sally Holdings, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, and to the extent there are Registrable Securities outstanding on the fifth Business Day after the one year anniversary of the Closing Date, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as promptly as practicable and no later than 45 calendar days after the Closing DateEffective Time of such Exchange Registration Statement. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 30 calendar days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business calendar days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) the Securities are Registrable Securities and (ii) on or prior to the time the Exchange Offer is consummated completed, existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (iiiii) the Exchange Offer has not been completed within 360 45 days following of the fifth Business Day after first anniversary of the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer Date or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify of Registrable Securities notifies the Company that such holder is, prior to the 20th Business Day following the completion of the Exchange Offer that: (A) it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and clause (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for filing obligation arises; provided, that if at any time the Company is or becomes a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliatewell-known seasoned issuer” (as defined in Rule 144405) of and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company pursuant and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to Rule 144 without volume restriction; provided, however, that use all commercially reasonable efforts to keep such Shelf Registration Statement continuously effective until such time as there are no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required or the Guarantors to take any such action with respect to any such holders file more than once every quarter. The Company further agrees to supplement or make amendments one post-effective amendment to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable Statement in any 30 day period. Notwithstanding anything to the registration form used by the Company for such contrary in this Section 2(b), (A) no holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration Statement or by the Securities Act or rules pursuant to this Agreement unless and regulations thereunder for shelf registration, and until such holder furnishes to the Company in writing, within 20 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement, prospectus or preliminary prospectus and such holder agrees to furnish promptly to each the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not materially misleading and (B) upon notice to the Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement, or extend the time period in which it is required to file the Shelf Registration Statement (x) for one or more periods up to an aggregate of 60 days in the aggregate in any consecutive twelve12-month period (each, a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 calendar days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b2(a) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to or Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective but shall thereafter either be withdrawn by the Company or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein including with respect to any Shelf Registration Statement during any applicable Suspension Period in accordance with the last sentence of Section 2(b)) without being succeeded immediately by an additional registration statement filed and declared effective for more than 60 calendar days in any 12 month period prior to the time the Securities cease to be Registrable Securities (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period; provided, however, that upon the exchange of the Exchange Securities for all Registrable Securities tendered, or upon the effectiveness of the applicable Shelf Registration Statement which had ceased to remain effective, Special Interest on the Registrable Securities in respect of which such Registration Default exists shall cease to accrue. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the The accrual of Special Interest will ceaseshall be the exclusive monetary remedy available to the holders of Registrable Securities for any Registration Default. A Registration Default under clause (iiNotwithstanding anything to the contrary in this Section 2(c), the Company shall not be obligated to pay Special Interest in this Section 2(c) or (iiiduring a Suspension Period permitted by Section 2(b) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodhereof.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (MDC Partners Inc), Exchange and Registration Rights Agreement (MDC Partners Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 180 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company in writing prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 90 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 180 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company agrees to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company agrees, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (AbitibiBowater Inc.), Exchange and Registration Rights Agreement (AbitibiBowater Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the The Company and the Guarantors agree to use their respective commercially reasonable efforts to shall file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale resale on a continuous or delayed basis by the holders ofby, each Electing Holder of all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities then held by the Initial Purchasers)such Electing Holder, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (each such filing, the “Shelf Registration” and each such registration statement, the “Shelf Registration Statement”), as follows: (x) with respect to the Purchased Shares, the Company shall file a Shelf Registration Statement no later than the Closing Date (as defined in the Purchase Agreement), (y) with respect to the Price Protection Shares, if applicable, the Company shall file a Shelf Registration Statement no later than five (5) Business Days after the date of issuance of the Price Protection Shares (such filing date, the “Price Protection Share Filing Date”) and (z) with respect to the Option Shares, if applicable, the Company shall file a Shelf Registration Statement no later than five (5) Business Days after the date of issuance of the Option Shares (such filing date, the “Option Share Filing Date”). The Company and the Guarantors agree agrees to use their respective commercially reasonable its best efforts (x) to cause the each Shelf Registration Statement to become or be declared effective within 90 days as soon as practicable after the date on which the obligation to file such applicable Shelf Registration Statement arises and filing deadline described above (but in any event within forty-five (45) days thereof) and, subject to use their respective commercially reasonable efforts Section 3(d), to cause such keep each Shelf Registration Statement to remain continuously effective for a period ending on 180 days following the earlier of Closing Date, the first anniversary of Price Protection Share Filing Date, or the Effective Time or such shorter period Option Share Filing Date, as applicable; provided, that will terminate when all in the event that the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public shall not be freely distributable pursuant to Rule 144 or would be eligible to be sold by a person at any time between the applicable 180-day anniversary and the date that is not an “affiliate” (365 days following the Closing Date, the Price Protection Share Filing Date, or the Option Share Filing Date, as defined in Rule 144) of applicable, the Company shall keep the applicable Shelf Registration Statement continuously effective until the earlier of (i) such time as all Registrable Securities become freely distributable pursuant to Rule 144 without volume restriction; providedand (ii) the date that is 365 days following the Closing Date, howeverthe Price Protection Share Filing Date, that no holder shall be entitled to be named or the Option Share Filing Date, as a selling securityholder in applicable. After the Effective Time of any Shelf Registration Statement or Statement, promptly upon the request of an Eligible Person holding Registrable Securities that is not then an Electing Holder, the Company shall use its best efforts to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing HolderSecurities, and (y) after the Effective Time of the Shelf Registration Statementincluding, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to Eligible Person must return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterthis Agreement. The Company further agrees to promptly supplement or make amendments to the Shelf Registration Statement, including, without limitation, any post-effective amendments, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company for any such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(cb) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to shall use their respective commercially reasonable its best efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, and, to the extent the Shelf Registration Statement is not effective upon filing with the Commission, to submit to the Commission, within two (2) Business Days after the Company learns that no review of the Shelf Registration Statement will be made by the staff of the Commission or that the staff has no further comments on the Shelf Registration Statement, as the case may be, a request for acceleration of effectiveness (or post-effective amendment, if applicable) of the Shelf Registration Statement to a time and date not later than 48 hours after the submission of such request.
(fc) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time. Any reference herein to a prospectus as of any time shall include any supplement thereto, preliminary prospectus, or any free writing prospectus in respect thereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (L-1 Identity Solutions, Inc.), Registration Rights Agreement (L-1 Identity Solutions, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Dateby July 31, 2009. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its their commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or and such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Dateby August 30, 2009, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial a Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 prior to the later of (i) July 31, 2009 or (ii) 120 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first second anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be become eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company for resale pursuant to Rule 144 without volume restriction, if any; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s their obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before July 31, 2009, or (ii) the Exchange Offer has not been consummated within 360 days after the Closing Dateon or before August 30, 2009, or (iiiii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 the later of (x) July 31, 2009 or (y) 120 days after the date on which the obligation to file the Shelf Registration Statement arises, or or
(iiiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 8(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iiiii) or (iiiiv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees (if any) under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (HSI IP, Inc.), Exchange and Registration Rights Agreement (HSI IP, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuer and the Guarantor further agrees agree to use its commercially reasonable their best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus Prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Purchaser for any Securities acquired directly from the Company within Issuer and the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsGuarantor, the Company Issuer and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days in the case of clause (i) or (ii) and 90 days in the case of clause (iii) after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus Prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the Prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivehereof.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period Issuer or the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company Issuer and the Guarantors Guarantor shall each take all actions reasonably reasonable and necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonable and necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein Each holder of Registrable Securities hereby acknowledges and agrees that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or prospectus 508, as applicable, of any time Regulation S-K under the Act if the resales are of Exchange Securities obtained by such holder in exchange for Registrable Securities acquired by such holder directly from the Issuer or one of its affiliates. Accordingly, the Issuer’s obligation to accept for exchange a holder’s Registrable Securities tendered in the Exchange Offer shall be deemed conditioned upon such holder representing to include the Issuer that, at the time of the consummation of the Exchange Offer:
(i) that any document incorporated, or deemed to Exchange Securities received by such holder will be incorporated, therein by reference as acquired in the ordinary course of such time holder’s business;
(ii) that such holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Registrable Securities acquired as a result of market making activities or other trading activities and acknowledges that such holder will deliver a Prospectus in connection with any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as resale of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such timethe Exchange Securities.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Berkshire Hathaway Inc), Exchange and Registration Rights Agreement (Berkshire Hathaway Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing DateAct. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse)(4).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 180 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 180 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer has not been consummated completed within 360 180 days after the Closing Date, Date or (iiii)(x) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, (if required) has not become or been declared effective within the later of 90 days after such Shelf Registration Statement filing obligation arises and 180 days after the Closing Date or (iiiy) if any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through and (iiiii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodmay exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Registration Rights Agreement (Clean Harbors Inc), Registration Rights Agreement (Clean Harbors Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d2(e) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its all commercially reasonable efforts to commence consummate the Exchange Offer promptly no later than 30 business days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period at least 30 days, or longer, if required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business daysfederal securities laws, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on the Company is not (A) required to file the Exchange Offer Registration Statement or prior (B) permitted to consummate the time Exchange Offer because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities policy; or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following consummation of the Exchange Offer or that (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, was prohibited by law or Commission policy from participating in the Exchange Offer or Offer, (B) such holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to the status of such holder as is a broker-dealer and holds Registrable Securities acquired directly from the Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective all commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 30 days after the time such obligation to file arises (but no earlier than 120 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become be declared effective within by the Commission (unless it becomes automatically effective upon filing) on or prior to 90 days after the date on which the obligation to file filing of such Shelf Registration Statement arises (but no earlier than 210 days following the Closing Date) and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement continuously effective until the later of (A) the date on which no broker-dealer making a market in the Exchange Securities is deemed to remain effective for a period ending on be an affiliate of the Company and (B) the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the earlier time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restrictionoutstanding; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus or prospectus supplement forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall (A) relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required to take any such action with respect to any such holders file more than once every quarterone post-effective amendment to the Shelf Registration Statement in any 45-day period. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission.
(c) On the date of consummation of the Exchange Offer, the Company shall provide notice to Xxxxxx Brothers Inc., which notice shall state (i) that the Exchange Offer has been consummated and the date of consummation; (ii) whether any holders of Registrable Securities did not participate in the Exchange Offer; and (iii) if any holders of Registrable Securities did not participate in the Exchange Offer, to the extent available to the Company, the name, address and telephone number of each such holder who did not participate and the principal amount of Securities held by each such holder. Following the delivery of such notice, Xxxxxx Brothers Inc. shall be entitled, but in no way obligated, to contact each holder of Registrable Securities who did not participate in the Exchange Offer and, among other things, provide such holder with the information specified in clause (i) above.
(d) Notwithstanding the foregoing, the Company may suspend issue a notice that the availability of any Shelf Registration Statement (x) is no longer effective or the prospectus included therein is no longer usable for up offers and sales of Registrable Securities covered by the Shelf Registration Statement for a period not to an aggregate of exceed 60 days in the aggregate in any consecutive twelve-month period (a “suspension period”) if (i) such action is required by applicable law law; or (ii) due to the existence of material non-public information, disclosure of such action is taken material non-public information would be required to make the statements contained in the applicable registration statement not misleading (including for the avoidance of doubt, the pendancy of an acquisition, disposition or public or private offering by the Company), and the Company in good faith and has a bona fide business purpose for valid business reasons preserving as confidential such material non-public information (not including other than avoidance of the Company’s its obligations hereunder); provided that (x) as determined by the board of directors of the Company or an authorized committee thereof, including promptly thereafter complies with the acquisition or divestiture requirements of assets, or Section 3(d) hereof and (y) with respect to a the required period of effectiveness for the Shelf Registration Period set forth in Section 2(b) hereof shall be extended by the number of days during which such Shelf Registration Statement required was not effective or usable pursuant to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveforegoing provisions.
(ce) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 60 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective (or becomes automatically effective upon filing) but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on in an amount equal to $0.05 per week per $1,000 principal amount of Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until held by such time as all Registration Defaults have been cured at a per annum rate of 0.25% holder for the first 90 days of the Registration Default Period, which rate . The amount of Special Interest shall increase by an additional 0.25% during $0.05 per week per $1,000 principal amount of Registrable Securities with respect to each subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will cease. A for all Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Defaults of the Exchange Offer in the case $0.20 per week per $1,000 principal amount of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodRegistrable Securities.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(ef) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fg) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Visant Corp), Exchange and Registration Rights Agreement (Visant Holding Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 690 days after the Closing Reference Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 720 days following the Closing Reference Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 720 days after the Closing Reference Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, Default special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the any Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Great North Imports, LLC), Exchange and Registration Rights Agreement (Great North Imports, LLC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) belowThe Company shall at the written request of any holders of Registrable Securities at the time outstanding, which request may be made at any time after the Closing Date (the date such request is made, the Company and “Request Date”), file with the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Commission a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by of the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and which are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActAct (the “Indenture”), ) except that they have been registered pursuant to an effective registration statement under the Securities Act and do will not contain restrictions on transfer or provisions for the additional special interest contemplated in by Section 2(c) below hereof or provisions restricting transfer; provided, however, that at the liquidated damages provided in Section 2(d) below request of holders of all of the Securities, such debt securities may differ as to relative ranking, interest rate or yield, so long as the aggregate cost of the issuance to the Company is not increased (such new debt securities hereinafter called “Exchange Securities”). Each holder of Registrable Securities shall have the option of participating in such Exchange Offer. The Company and the Guarantors agree agrees to use their respective commercially reasonable its best efforts to cause the Exchange Registration Statement such registration statement to be filed not later than 45 days after such request and to become effective under the Securities Act within 270 as soon as practicable, but no later than 120 days after the Closing Request Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 30 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If 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 for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities 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, it being understood that broker-dealers receiving Exchange Securities will be subject to certain prospectus delivery requirements with respect to resale of the Exchange Securities. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (xi) to include in the Exchange Registration Statement registration statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (yii) to keep such Exchange Registration Statement registration statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon on the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in With respect to such registration statement such holders shall have the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time benefit of the commencement rights of the Exchange Offer such holder has no arrangements or understanding with any person to participate indemnification and contribution set forth in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsSection 6 hereof.
(b) If (i) on or prior In addition to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a)) above, use their respective commercially reasonable efforts to upon the request in writing of any holders of Registrable Securities at the time outstanding, which request may be made at any time after the Closing Date, the Company shall file under the Securities Act as promptly soon as reasonably practicable, practicable a “shelf” registration statement (to the extent the Company then qualifies for such filing) providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or under the Securities Act and/or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially reasonable its best efforts (x) to file the registration statement relating to the Shelf Registration not later than 45 days after such request, and to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation such request, and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause continuously effective until the later of (i) two (2) years from the effective date thereof or (ii) such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant outstanding, subject to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or and the rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration StatementRegistration, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder the holders of the Registrable Securities copies of any such supplement or amendment promptly following prior to its filing being used and/or filed with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed (a) the registration statement relating to the Exchange Offer on or before the date such statement is required to be filed pursuant to Section 2(a) or (b) the Shelf Registration on or before the date such statement is required to be filed pursuant to Section 2(b) or (ii) either such registration statement has not become effective or been declared effective by the Commission on or before the date such statement is required to be declared to be effective pursuant to Section 2(a) and Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 business days (or such necessary longer period, if any, pending any necessary approval or non-objection by or, any filing with, any governmental or regulatory authority being sought in good faith by appropriate proceedings promptly initiated and diligently conducted) after the Closing Date, or initial effective date of the registration statement (ii) if a Shelf Registration Statement the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iiiiv) if any Shelf Registration Statement registration statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company effective but shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease thereafter ceases to be effective (other than by action or usable for transfers of Registrable Securities during the Company pursuant periods referred to the second paragraph of Section in Sections 2(a) and 2(b) hereof) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, then the Company shall pay in cash a special incremental increase of the interest rate on the Securities (“Special Interest”), ) to each holder thereof in addition to the Base Interest, shall accrue on Registrable Securities an amount of 0.50% (or 50 basis points) per annum for the first 120 days following the occurrence of the first Registration Default Period and in an amount of 1.0% (but only with respect to one or 100 basis points) per annum thereafter and for so long as any Registration Default at any particular time) until is in effect (after which such time as all Registration Defaults have been cured at a per annum rate of 0.25% Special Interest shall cease to be payable). Notwithstanding anything to the contrary contained herein, for the purpose of this Section 2, any Special Interest payable during the first 90 days five years after the Closing Date shall not be included in any determination of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless aggregate accreted value of the number of Registration Defaults Securities. In the event that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of any Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirementsbecomes payable, the Company shall pay liquidated damages to promptly notify the trustee designated by the Indenture of such broker-dealers event, including any subsequent increase in an the amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company of Special Interest, and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicablebeginning and ending dates therefor.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Check Mart of New Mexico Inc), Exchange and Registration Rights Agreement (Check Mart of New Mexico Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, within 210 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”’) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”’). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agree, that upon request, they will (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 210 days after the Closing Date), a “shelf” ’ registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”’). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 270 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post- effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) for up to an aggregate of 60 which shall not exceed 45 days in any consecutive three-month period or 90 days in any twelve-month period (a “Suspension Period’) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Shelf Registration Statement on or before the date on which such Shelf Registration Statement is required to be filed pursuant to Section 2(b), or (ii) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”’), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”’), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.), Exchange and Registration Rights Agreement (CC Media Holdings Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuer and the Guarantor further agrees agree to use its commercially reasonable their best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus Prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Purchaser for any Securities acquired directly from the Company within Issuer and the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsGuarantor, the Company Issuer and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days in the case of clause (i) or (ii) and 90 days in the case of clause (iii) after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus Prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the Prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivehereof.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period Issuer or the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company Issuer and the Guarantors Guarantor shall each take all actions reasonably reasonable and necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonable and necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein Each holder of Registrable Securities hereby acknowledges and agrees that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Mxxxxx Sxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or prospectus 508, as applicable, of any time Regulation S-K under the Act if the resales are of Exchange Securities obtained by such holder in exchange for Registrable Securities acquired by such holder directly from the Issuer or one of its affiliates. Accordingly, the Issuer’s obligation to accept for exchange a holder’s Registrable Securities tendered in the Exchange Offer shall be deemed conditioned upon such holder representing to include the Issuer that, at the time of the consummation of the Exchange Offer:
(i) that any document incorporated, or deemed to Exchange Securities received by such holder will be incorporated, therein by reference as acquired in the ordinary course of such time holder’s business;
(ii) that such holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Registrable Securities acquired as a result of market making activities or other trading activities and acknowledges that such holder will deliver a Prospectus in connection with any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as resale of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such timethe Exchange Securities.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Berkshire Hathaway Inc), Exchange and Registration Rights Agreement (Xtra Finance Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 365 days after following the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law; provided that such period shall not, in any case, be less than 10 business days), ; provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or and such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-market making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 395 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective its commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or or, in the case of clause (iii), the Registrable Securities held by the Initial Purchasers, or, in the case of clause (iv), by the holders referred to in clause (iv), as the case may be), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 365 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective its commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of 365 days following the Effective Time 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 distributed to the public pursuant to Rule 144 or or, after the 90th day following the Effective Time, would be eligible to be sold for resale (if held by a person that is not an “affiliate” (as defined in Rule 144) non-affiliate of the Company Company) pursuant to Rule 144 without restriction on volume restrictionor manner of sale, if any; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors fail fails to fulfill their its obligations under this Section 2 and that it would not be feasible to ascertain the extent of such damages with precision. In the event that (i) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before 365 days following the Closing Date, or (ii) the Exchange Offer has not been consummated within 360 395 days after the Closing Date, or (iiiii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 within 365 days after following the date on which the obligation to file the Shelf Registration Statement arises, or (iiiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are is required to use their respective its commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 8(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following Immediately following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iiiii) or (iiiiv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 90-day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Servicemaster Co), Exchange and Registration Rights Agreement (Servicemaster Co)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts Issuer agrees to file under the Securities Act Act, to the extent not prohibited by any applicable law or applicable interpretations of the Commission, no later than 18 months after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the Guarantors, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree Issuer agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days no later than 21 months after the Closing DateDate (or 2 years after the Closing Date if the Exchange Registration Statement is subject to review by the Commission). The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuer further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if (i) the Company commences debt securities and related guarantee to be received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities will be, 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 such jurisdictions of the United States as are necessary to consummate the Exchange Offer and (ii) the Issuer shall have exchanged, pursuant to the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted Securities for all the Registrable Securities validly that have been properly tendered in accordance with and not withdrawn before the terms expiration of the Exchange Offer. The Company and Issuer shall keep the Guarantors agree Exchange Offer open until a date that is at least 30 Business Days following the commencement of the Exchange Offer. The Issuer agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 21 months following the Closing Date (or two years if the Exchange Registration Statement is subject to review by the Commission) and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuer prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or offer that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Issuer or an affiliate of the Company within Issuer, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company Issuer and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 180 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree Issuer agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (or 180 days if the Shelf Registration Statement is subject to review by the Commission, but no earlier than 270 days, or 360 days, as applicable, after the date of the Indenture); provided that if at any time the Issuer is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuer and the Guarantors shall file the Exchange Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuer agrees to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities or be entitled to receive Additional Interest for a failure with respect to a Shelf Registration Statement pursuant to Section 2(c) below unless such holder is an Electing Holder. The Issuer agrees, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon Statement and as soon as reasonably practicable following the request of any holder of Registrable Securities that Securities, which delivers a completed Notice and Questionnaire and is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) shall relieve any such holder of require the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required Issuer to take any such action with respect to any such holders more than once every per quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company Issuer may suspend the availability of any offering and sale under the Shelf Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines necessary if (xA) for up to an aggregate the Board of 60 days in any consecutive twelve-month period if Directors determines (i) there are valid business reasons for doing so (until such action is required by applicable law business reasons cease to exist), including, without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, or (ii) such action is taken by if the Company Shelf Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in good faith and for valid business reasons (not including avoidance order to make the statements therein, in light of the Company’s obligations hereundercircumstances under which they were made, not misleading, and (B) as determined by the board Issuer notifies the Electing Holders within five days after the Board of directors Directors makes the relevant determination set forth in clause (A); provided that the period of suspension under clause (A)(ii) above shall not exceed 120 days in each year during which the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement is required to be effective. In addition, the Issuer may suspend the offering and sale under the Shelf Registration Statement if such Shelf Registration Statement was required to be filed due to a failure to consummate the Exchange Offer within the required time period, period if such action suspension occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuer or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b9(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”subject to the provisions of Section 10(b), in addition to the Base Interest, shall accrue on interest rate borne by the Registrable Securities for during the Registration Default Period shall be increased (but only with respect to one Registration Default at any particular time“Additional Interest”) until such time as all Registration Defaults have been cured at a by 0.25% per annum rate of 0.25% for upon the first 90 days occurrence of the Registration Default PeriodDefault, which rate shall will increase by an additional 0.25% during per annum after each subsequent 90-day periodperiod that such Registration Default Period continues, up to a provided that the maximum aggregate amount of 0.50Additional Interest will in no event exceed 1.00% regardless per annum. Upon
(1) the filing of the number Exchange Registration Statement (in the case of clause (i) above), (2) the effectiveness of the Exchange Registration Defaults that shall have occurred and be continuing. Following Statement or the cure effectiveness of all a Shelf Registration Defaults, Statement (in the accrual case of Special Interest will cease. A Registration Default under clause (ii) above) or (iii3) will be deemed cured upon the consummation of the Exchange Offer (in the case of a clause (iii) above) or (4) the additional Exchange Registration Statement or Shelf Registration Statement required Statement, as the case may be, being filed and declared effective (in the case of clause (iv) above), the interest rate borne by the Registrable Securities will be reduced to the original interest rate if we are otherwise in compliance with this paragraph; provided, further, that if, after any such reduction in interest rate, a different event specified in clause (i), (ii), (iii) or (iv) above occurs, the interest rate will again be filed due increased pursuant to the foregoing provisions. Additional Interest shall accrue and be payable only with respect to a failure single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may exist at such time. The accrual of Additional Interest shall be the exclusive monetary remedy available to consummate the Exchange Offer within the required time periodholders of Registrable Securities for any Registration Default.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Nuveen Investments Holdings, Inc.), Exchange and Registration Rights Agreement (Nuveen Investments Holdings, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act no later than 180 days after the Closing Date, or if the 180th day is not a Business Day, the first Business Day thereafter, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Additional Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing DateDate or, if the 270th day is not a Business Day, the first Business Day thereafter. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not properly withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been validly tendered and not properly withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 90 days after the time such obligation to file arises (but no earlier than 180 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 180 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 270 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) except as specifically permitted herein without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special subject to the provisions of Section 9(b), additional interest (“Special Additional Interest”), in addition to the Base Interest, shall accrue on the outstanding principal amount of the Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Additional Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodmay exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Venoco, Inc.), Exchange and Registration Rights Agreement (Venoco, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Subsidiary Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing DateAct. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence complete the Exchange Offer promptly no later than 60 days after the Exchange Registration Statement becomes effectiveits commencement, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The If any broker-dealer receives Exchange Securities for its own account in the Exchange Offer in exchange for securities that were acquired by such broker-dealer as a result of market-making or other trading activities, and any such broker-dealer so requests, the Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is such a broker-dealer and (y) to use commercially reasonable efforts to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers notify the Company that they no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 270 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect holder of the Securities notifies the Company prior to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following the consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 days after the date on which the obligation and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) hereof, provided further, that each holder shall use commercially reasonable efforts to furnish such additional information as may be required from time to time to be disclosed in order to make the information previously provided to the Company shall not be required to take any such action with respect to any such holders more than once every quartermisleading. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that that
(i) the Exchange Offer has is not been consummated within 360 completed (or, if required pursuant to Section 2(b), the Shelf Registration Statement is not declared effective) on or before the date that is 270 days after the Closing Date, or or
(ii) if a Shelf any Exchange Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effectiveeffective but shall fail to be usable for its intended purpose, and during the period shall be suspended by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein), in each case for more than 60 a period in excess of 45 days in the aggregate (whether or not consecutive) in any consecutive twelve12-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective period, (each such event referred to in clauses (i) through and (iiiii), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”), ") then, as liquidated damages for such Registration Default, special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.00% thereafter for the remaining portion of the Registration Default Period. Notwithstanding anything to the contrary set forth herein, (a) in the case of clause (i) above, upon the completion of the Exchange Offer or the Shelf Registration Statement being declared effective, as applicable, or (b) in the case of clause (ii) above, upon the occurrence of any event (including the filing of an appropriate amendment to the relevant Registration Statement, another Registration Statement being declared effective, or the taking of other appropriate action) that causes the Exchange Registration Statement or the Shelf Registration Statement, as applicable, to again be declared effective or made usable, the Special Interest payable as a result of clause (i) or (iiiii), as applicable, shall cease to accrue. The Special Interest provided for in this Section 2(c) will shall be deemed cured upon consummation the exclusive monetary remedy available to holders of the Exchange Offer in the case of a Shelf Securities for Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefaults.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall cause each Subsidiary Guarantor to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Subject to the Company's obligation to pay Special Interest in accordance with Section 2(c) above, the Company may, at its option and at any time, elect to suspend any Exchange Registration Statement or Shelf Registration Statement by notice to each broker-dealer or holder of Registrable Securities, as applicable.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Goodyear Tire & Rubber Co /Oh/), Exchange and Registration Rights Agreement (Goodyear Tire & Rubber Co /Oh/)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, no later than 120 days after the Closing Date a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which that has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence and complete the Exchange Offer promptly no later than 225 days after the Exchange Registration Statement becomes effectiveClosing Date, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 90 days after the time such obligation to file arises (but in no event earlier than the Exchange Registration Statement would have had to be filed), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer the Company has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by or Shelf Registration Statement on or before the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.applicable date pursuant to
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Houghton Mifflin Co), Exchange and Registration Rights Agreement (Houghton Mifflin Co)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing, a registration statement relating to an offer to exchange (such registration statement, the an “Exchange Registration Statement”, and such offer, the an “Exchange Offer”) any and all of the Securities of each series for a like aggregate principal amount of such series at maturity of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guaranteesof such series, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the such Exchange Registration Statement to become effective under the Securities Act within 270 days as soon as practicable after the Closing DateClosing. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes such registration statement has become effective, hold the such Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the issue Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the such Exchange Offer. If Such Exchange Offer will be deemed to have been “completed” only if the securities received by holders other than Restricted Holders in such Exchange Offer for such Registrable Securities are, upon receipt, transferable by each such holder without need for further compliance with Section 5 of the Securities Act and with the Exchange Act (except for the requirement to deliver a prospectus included in the Exchange Registration Statement applicable to resales by any broker-dealer of Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities other than those acquired by the broker-dealer directly from the Company), and without material restrictions under the “blue sky” or securities laws of a substantial majority of the States of the United States of America. Such Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the applicable Exchange Securities for all outstanding Registrable Securities of such Series pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to such Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will expiration of such Exchange Offer, which shall be entitled to close the Exchange Offer 30 on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in connection with any resales by any holder of such Exchange Securities that is by a broker-dealer, other than resales of such Exchange Securities received by a broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Company, and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when such Exchange Securities are first issued in the such Exchange Offer and ending upon the earlier of the expiration of the 90th day after the such Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer shall be required to represent to the Company Registration Statement, each broker-dealer that (i) any holds such Exchange Securities received by in such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Registrable Securities that were not acquired as a result of market-making activities or other trading activities (other than Securities acquired by it directly from the Company or any shall have the benefit of its affiliatesthe rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or If, prior to the time the Exchange Offer is consummated completed, existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders holders, other than Restricted Holders Holders, in the such Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under need for further compliance with Section 5 of the Securities Act, Act (iiexcept for the requirement to deliver a prospectus included in the Exchange Registration Statement applicable to resales by broker-dealers of Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities other than those acquired by the broker-dealer directly from the Company) the or if such Exchange Offer has not been completed consummated within 360 225 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shallClosing, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), the Company shall use their respective commercially its reasonable best efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than 45 days after the date on which the obligation to file such “shelf” registration statement arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the a “Shelf Registration” and such registration statement, the a “Shelf Registration Statement”). In addition, in the event that the Purchasers shall not have resold all of the Securities initially purchased by them from the Company pursuant to the Purchase Agreement prior to the consummation of the applicable Exchange Offer, the Company shall file under the Securities Act as soon as practicable a Shelf Registration Statement in respect of such Securities. The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (xi) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 105 days after following the date on which the obligation to file such Shelf Registration Statement arises arose and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement continuously effective (subject to remain effective the provisions of the last sentence of this Section 2(b)) in order to permit the prospectus forming a part thereof to be usable by holders for resales of such Registrable Securities for a period ending on the earlier of the first second anniversary of the Effective Time effective date thereof or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the such Shelf Registration Statement or to use the prospectus forming a part thereof for resales of applicable Registrable Securities unless such holder is an Electing Holder, and (yc) after the Effective Time of the such Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (yii) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees (subject to the provisions of the last sentence of this Section 2(b)) to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoingrequirement to keep such Shelf Registration Statement continuously effective, the Company may suspend the availability effectiveness of any a Shelf Registration Statement (x) for up to 45 consecutive days once during any 90-day period and up to three times during any 365-day period, but no more than an aggregate of 60 90 days during any 365-period if, (a)(i) an event occurs and is continuing as a result of which the Shelf Registration Statement would, in any consecutive twelve-month period if (i) such action is required by applicable law the Company’s good faith judgment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading and (ii) such action is taken by the Company determines in good faith and for valid business reasons (not including avoidance that the disclosure of such event at such time is reasonably likely to have a material adverse effect on the Company’s obligations hereunder) as determined by the board of directors business, operations or prospects of the Company or an authorized committee thereof, including (b) the acquisition or divestiture of assets, or (y) with respect disclosure otherwise relates to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used pending material business transaction or is effectiveother corporate development.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer the Company has not been consummated within 360 days after filed the Closing DateExchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) if a such Exchange Registration Statement has not become effective or been declared effective by the Commission within 180 days of the Closing, or (iii) such Shelf Registration Statement required to be filed under Section 2(b) hereof is has not declared become effective on or before 90 within 105 days after of the date on which the obligation to file the such Shelf Registration Statement arisesarose, or (iiiiv) the Exchange Offer has not been completed within 30 business days after the effectiveness deadline of the Exchange Registration Statement relating to such Exchange Offer (if such Exchange Offer is then required to be made) or (v) any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced succeeded within 90 30 days by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, notwithstanding the provisions of Section 9(b), special cash interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured and be payable at a per annum rate of 0.25% for %. If the first 90 days of Company has not completed the Exchange Offer by the 270th day following the Closing (or, if applicable, the Shelf Registration Default Periodhas not become effective by the 150th day after the obligation to file it arose), which rate the Special Interest shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that and shall have occurred accrue and be continuing. Following payable at a per annum rate of 0.5% until the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Company has completed such Exchange Offer in the case of a (or until such Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodhas become effective).
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Registration Rights Agreement (Premcor Refining Group Inc), Registration Rights Agreement (Premcor Refining Group Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, within 210 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agree, that upon request, they will (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 210 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 270 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) for up to an aggregate of 60 which shall not exceed 45 days in any consecutive three-month period or 90 days in any twelve-month period (a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Shelf Registration Statement on or before the date on which such Shelf Registration Statement is required to be filed pursuant to Section 2(b), or (ii) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”’), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (CC Media Holdings Inc), Exchange and Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b2(b)(i) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 30 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not validly withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and related guarantees received by holders, other than Restricted Holders, in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted Securities for all the Registrable Securities that have been validly tendered in accordance with and not validly withdrawn before the terms expiration of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 240 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than 30 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 30 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is or post-effective amendment filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable the outstanding Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall cause each Guarantor to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement (Hornbeck Offshore Services Inc /La), Exchange and Registration Rights Agreement (Hornbeck Offshore Services Inc /La)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 300 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuer and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 Actno later than 360 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuer further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveand to complete the Exchange Offer no later than 390 days following the Closing Date, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the Company commences debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 business days after Offer, which shall be on a date that is at least 20 and not more than 40 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 360 days following the Closing Date and the Exchange Offer has not been completed within 360 30 Business Days of such Effective Time and, in any event no later than 390 days following after the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuer prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Issuer or an affiliate of the Company within Issuer, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company Issuer and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 390 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuer and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for (but no earlier than 390 days after the Closing Date); provided, that if at any time the Issuer is or becomes a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliatewell-known seasoned issuer” (as defined in Rule 144405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuer and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuer and the Company pursuant Guarantors agree to Rule 144 without volume restriction; provided, however, that use all commercially reasonable efforts to keep such Shelf Registration Statement continuously effective until the earlier of (i) one year after the Effective Time and (ii) such time as there are no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Issuer and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be Issuer or the Guarantors to file more than one post-effective amendment to the Shelf Registration Statement in any 45-day period. Notwithstanding anything to the contrary in this Section 2(b), upon notice to the Electing Holders, the Issuer may suspend the use or the effectiveness of such Shelf Registration Statement, or extend the time period in which it is required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to file the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 45 consecutive days and up to 90 days in the aggregate, in each case in any consecutive twelve12-month period (a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action the Chief Financial Officer and/or Chief Executive Officer of the Parent Guarantor determines that there is taken by the Company in good faith and for a valid business reasons (not including avoidance purpose for suspension of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company Issuer shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer has not been consummated completed within 360 days 390 Days after the Closing Date, Date or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuer or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through and (iii), ii) a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure The payment of all Registration Defaults, the accrual of such Special Interest will cease. A be the Holders’ sole remedy hereunder with respect to any Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefaults hereunder.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer The Issuer shall take, and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement, Exchange and Registration Rights Agreement (Tronox LTD)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act a Act, no later than 270 days after the Closing Date, one or more registration statement statements relating to an offer to exchange (each such registration statement, the an “Exchange Registration Statement”, and each such offer, the an “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities junior subordinated debentures issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees junior subordinated debentures have provisions that are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered with the Commission pursuant to an effective registration statement under the Securities Act and do not contain restrictions on provisions restricting their transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (any such new debt securities junior subordinated debentures hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to cause the an Exchange Registration Statement to become effective under the Securities Act within 270 no later than 360 days after the Closing Date. The Exchange Offer Offers will be registered under the Securities Act on the appropriate form and will comply comply, in all material respects, with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the and complete each Exchange Offer promptly promptly, but no later than 30 days after the such Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, has become effective and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the such Exchange Offer. If An Exchange Offer will be deemed to have been “completed” only if the Exchange Securities received by holders other than Restricted Holders in such Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities 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. An Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to such Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will expiration of such Exchange Offer, which shall be entitled to close the Exchange Offer 30 on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the an Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer or any other person with similar prospectus delivery requirements and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 30th day after the such Exchange Offer has been completed or such time as such broker-dealers or such other persons no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c) and (d) hereof. In the event the Company for any reason does not complete the Exchange Offer shall be required to represent to as contemplated in this Section 2(a), the Company that (ishall have no further obligations under this Agreement except as provided in Section 2(b) any Exchange Securities received by such holder will be acquired in below and for the ordinary course payment of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,Special Interest” as defined provided in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (ivSection 2(c) 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, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsbelow.
(b) If (i) on or prior to the time the an Exchange Offer is consummated completed in respect of the Securities, existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders holders, other than Restricted Holders Holders, in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the an Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 360 days after the Closing Date, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, of all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the a “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain become or be declared effective no later than 30 days after such Shelf Registration Statement is filed and to keep such Shelf Registration Statement continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when time as all the Registrable Securities covered by the Shelf Registration Statement have been are sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restrictionthereunder; provided, however, that no holder shall be entitled to be named as a selling securityholder in the such Shelf Registration Statement or to use the prospectus forming a part thereof for resales of such Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the such Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and . In the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when event the Shelf Registration Statement may once again be used has not been filed or is effectivebecome or been declared effective as contemplated in this Section 2(b), the Company shall have no further obligations under this Agreement except for the payment of “Special Interest” as provided in Section 2(c) below.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer has is not been consummated completed within 360 390 days after the Closing Date, Date or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, (to the extent required by Section 2(b) hereof) has not become or been declared effective by the 390th day after the Closing Date or (iii) if any Exchange Registration Statement or Shelf Registration Statement in respect of the Securities required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded by a shelf post-effective amendment or a prospectus supplement to such registration statement or an additional registration statement that cures such failure and that is filed and itself declared effective promptly (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuingcontinuing until the earlier of such time as no Registration Default is in effect or the second anniversary of the Closing Date, a “Registration Default Period”), then, the Company hereby agrees to pay to each holder of Registrable Securities affected thereby, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, which shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.250.125% for the first 90 days of the Registration Default Period, which rate and shall increase by an additional at a per annum rate of 0.125% thereafter for the remaining portion of the Registration Default Period; provided that the Company shall in no event be required to pay Special Interest for more than one Registration Default at any given time; and provided further that in no event shall the Special Interest rate exceed 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer per annum in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodaggregate.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (American International Group Inc)
Registration Under the Securities Act. (a) Except as set forth in The Company and the Trust shall, at the Company's expense (subject to Section 2(b4 hereof), within 90 days following the Closing Date, file with the Commission a Registration Statement with respect to the Registrable Securities and thereafter shall each use its reasonable best efforts to cause such Registration Statement to be declared effective by the Commission under the Securities Act within 180 days after the Closing Date.
(b) belowSubject to Section 2(e) hereof, the Company and the Guarantors agree to Trust shall each use their respective commercially its reasonable best efforts to file under keep the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an Statement continuously effective registration statement under the Securities Act and do usable by holders for resales of Registrable Securities for a period (the "Effectiveness Period") of two years from the Effective Time or such shorter period that will terminate upon the earlier of the following: (i) when there are no outstanding Registrable Securities and (ii) when, in the written opinion of independent counsel to the Company and the Trust, all outstanding Registrable Securities held by persons that are not contain restrictions on transfer or provisions for "affiliates" of the additional interest contemplated in Section 2(c) below Company or the liquidated damages provided Trust (as defined in Section 2(dRule 144(a)(1) below under the Securities Act) may be resold without registration under the Securities Act pursuant to Rule 144(k) under the Securities Act (such new debt securities hereinafter called “Exchange Securities”or any successor provision thereto) and the Company or the Trust (as applicable) has removed all legends from the Registrable Securities restricting the transfer thereof (other than any Registrable Security held by an affiliate). The Company and the Guarantors agree to Trust shall each use their respective commercially its reasonable best efforts to cause file such amendments or supplements to the Exchange Registration Statement as are necessary or appropriate to become effective discharge its obligations under the Securities Act within 270 days after preceding sentence.
(c) If at any time, the Closing Date. The Exchange Offer will be registered under Preferred Securities, and/or the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effectiveDebentures, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offerare convertible into securities other than Common Stock, the Company will or the Trust, as applicable, shall, or shall cause any successor under the Indenture or the Trust Agreement, as applicable, to, cause such securities to be entitled included in the Registration Statement no later than the date on which the Securities may then be convertible into such securities.
(d) The parties hereto agree that, notwithstanding the provisions of Section 9(b), the remedies provided for in Section 2(f) hereof shall constitute the sole and exclusive monetary remedy for any breach by the Company or the Trust of its obligations under Section 2(a) hereof.
(e) Notwithstanding anything to close the Exchange Offer 30 contrary contained herein (including, without limitation, Section 2(b) hereof), the fact that any action or inaction on the part of the Company or the Trust relating to the conduct of its business days after or the commencement thereof occurrence of any other event causes the Registration Statement not to be usable pursuant to Section 3(f) hereof or not to be effective shall not constitute a breach of this Agreement by the Company or the Trust (or at the end of such shorter period permitted by applicable lawas applicable), provided that the Company has accepted all foregoing shall not limit (a) the Registrable Securities validly tendered in accordance with Company's or the terms of Trust's obligation to reasonably promptly thereafter take the Exchange Offer. The Company and the Guarantors agree actions required by Sections 3(d)(v) and/or 3(d)(xii) hereof, (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (ib) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, obligation that 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 it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesthe Trust may have to pay additional interest pursuant to Section 2(f) hereof or (c) the Company's and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vithe Trust's obligations under Section 3(d)(iv) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(bf) If (i) on or prior to the time date 90 days after the Exchange Offer is consummated existing Closing Date the Registration Statement has not been filed with the Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) on or prior to the Exchange Offer date 180 days after the Closing Date such Registration Statement has not been completed within 360 days declared effective (each such event, a "Registration Default"), additional interest ("Liquidated Damages") will accrue on the Debentures, and, accordingly, additional distributions will accrue on the Preferred Securities, from and including the day following such Registration Default until such date as the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder filed or declared effective, as the case may be. Liquidated Damages will be paid quarterly in arrears (other than in either case (x) due solely subject to the status Company's right to defer the payment of Liquidated Damages during any Extension Period (as defined in the Indenture)), with the first quarterly payment due on the first interest or distribution payment date, as applicable, following the date on which such holder as Liquidated Damages begin to accrue, and will accrue at a rate per annum equal to an affiliate additional one-quarter of one percent (0.25%) of the Company within principal amount or liquidation amount, as applicable, to and including the meaning 90th day following such Registration Default and one-half of one percent (0.50%) thereof from and after the 91st day following such Registration Default. In the event that the Registration Statement ceases to be effective during the Effective ness Period for more than 90 days, whether or not consecutive, during any 12-month period, then the interest rate borne by the Debentures and the distribution rate borne by the Preferred Securities will each increase by an additional one-half of one percent (0.50%) per annum from the 91st day of the Securities Act or (y) due applicable 12-month period such Registration Statement ceases to be effective until such holder’s inability time as the earlier to make occur of the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company Registration Statement again becoming effective and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all end of the Registrable Securities Effectiveness Period.
(or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). g) The Company and the Guarantors agree Trust shall each be deemed not to use their respective commercially have used its reasonable best efforts (x) to cause keep the Shelf Registration Statement effective during the Effectiveness Period if either the Trust or the Company voluntarily takes any action that would result in Electing Holders not being able to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises offer and to use sell any of their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; providedduring such period, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or law, (ii) upon the occurrence of any event contemplated by paragraph 3(d)(iv)(6) below, and such action is taken by the Trust or the Company in good faith and for valid business reasons or (not including avoidance iii) the continued effectiveness of the Company’s obligations hereunder) as determined by Registration Statement would require the board of directors Company or the Trust to disclose a material financing, acquisition or other corporate development, and the proper officers of the Company or an authorized committee thereof, including shall have determined in good faith that such disclosure is not in the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation best interest of the Exchange Offer; provided that Company and, in the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
case of clause (cii) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if above, the Company and the Guarantors fail to fulfill their obligations under this Section 2 Trust thereafter as promptly as practicable comply with the requirements of paragraph 3(d)(v) and that it would not be feasible to ascertain the extent of such damages with precision. In the event that (i3(d)(xii) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts below so as to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days again be useable in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability connection with sales of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodSecurities.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Registration Rights Agreement (United Rentals Inc /De)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and Securities, including without limitation, the related Guarantees, respectively if any (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and the related Guarantees, if any, received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed, existing Commission interpretations are changed such that the Exchange Securities or debt securities and the related Guarantees Guarantees, if any, received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 255 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of the thirtieth (30th) day after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take and shall cause the Guarantors, if any, to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantees, if any, under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Bio Rad Laboratories Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by each of the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 150 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 60 days after the Exchange Registration Statement becomes has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders, other than Restricted Holders, in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer that holds Registrable Securities for its own account as a result of market-making activities or other trading activities (a "Participating Broker-Dealer") and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such brokerParticipating Broker-dealers Dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 210 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) in the event that the Exchange Offer is not completed pursuant to either clause (i) or (ii) above, after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 60 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Defaults that shall have occurred Default Period and be continuingat a per annum rate of 1.0% thereafter. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A on such Securities shall cease to accrue (A) in the case of clause (i) above, upon the filing of the Exchange Registration Default under Statement or Shelf Registration Statement, (B) in the case of clause (ii) or (iii) will be deemed cured above, upon consummation the effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, (C) in the case of a clause (iii) above, upon the completion of the Exchange Offer, (D) in the case of clause (iv) above, upon the cessation of the stop order suspending the effectiveness of such Exchange Registration Statement or Shelf Registration Statement required to be filed due and (E) other than with respect to a failure holder that is an affiliate of the Company or a holder that is not otherwise eligible to consummate utilize the Exchange Offer within provisions of Rule 144k under the required time periodSecurities Act, upon the expiration of two years (or such shorter period as may be prescribed by paragraph (k) of Rule 144) commencing on the Closing Date.
(d) If during the 90 day period referenced in the final sentence The Company shall take, and shall cause each of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases Guarantors to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirementstake, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Univision Communications Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 60 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Registrable Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Registrable Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to cause the such Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 150 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days, after the such Exchange Registration Statement becomes has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been completed only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in connection with any resales by any holder of Exchange Securities that is by a broker-dealer, other than resales of Exchange Securities received by a broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Company, and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Exchange Securities. Each holder participating in the With respect to such Exchange Offer shall be required to represent to the Company Registration Statement, each broker-dealer that (i) any holds Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the an Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Registerable Securities that were not acquired as a result of market-making activities or other trading activities (other than Securities acquired by it directly from the Company or any shall have the benefit of its affiliatesthe rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time consummation of the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 255 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than 60 days after the time such obligation to file arises, a “shelf” registration "shelf registration" statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” ", and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 150 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain effective (except during a Deferral Period) for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) except during a Deferral Period, after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii3(c)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the The Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) during a Deferral Period and each holder of Registrable Securities agrees not to sell any Registrable Securities pursuant to the Shelf Registration Statement shall cease during a Deferral Period.
(c) In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to be declared effective pursuant to Section 2(a) or 2(b), respectively, (other than by action iii) the Exchange Offer has not been completed within 45 days after the initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made) (it being understood that the Company shall only be required to hold the Exchange Offer open for at least 20 business days) or (iv) any registration statement required by Section 2(a) or 2(b) hereof is filed and declared effective but shall thereafter either be withdrawn by the Company or shall become subject to an effective stop order issued pursuant to Section 8(d) of the second paragraph Securities Act suspending the effectiveness of Section 2(b) hereofsuch registration statement (except as specifically permitted herein) without being replaced within 90 days succeeded as soon as reasonably practicable by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” and each period during which a "; provided that no more than one Registration Default has occurred and is continuing, a “Registration Default Period”shall be deemed to be in effect at any one time), then, as liquidated damages for such Registration Default, special interest (“Special Interest”subject to the provisions of Section 9(b), in addition the per annum interest rate on the Securities shall be increased by adding 0.25% thereto (e.g., such interest rate, if initially 9.250%, would be increased to 9.500%) for the Base Interest, shall accrue period from the first day on Registrable Securities for which the Registration Default Period (but only with respect occurs to one the first day on which no Registration Default is in effect (at any particular timewhich time the interest rate on the Securities will be restored to its initial rate) until such time as all ("Special Interest"). For each 90-day period that the Registration Defaults have been cured at a Default continues, the per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall such Special Interest will increase by an additional 0.25%, provided that such rate shall in no event exceed 1.0% per annum in the aggregate. Notwithstanding the foregoing, a Registration Default shall be deemed suspended and Special Interest shall not accrue during each subsequent 90-day periodone or more periods in which the existence of any development, up event, fact, situation or circumstance relating to a maximum of 0.50% regardless the Company makes it, in the sole discretion of the number of Registration Defaults that shall have occurred and be continuing. Following Company, appropriate to suspend the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation availability of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to and the prospectus included therein (any such period, a failure to consummate the Exchange Offer within the required time "Deferral Period"); provided, however, that no Deferral Period or Deferral Periods shall exceed an aggregate of 30 days in any three-month period or an aggregate of 90 days in any twelve-month period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Western Wireless Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”, ," and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Additional Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly after the Exchange Registration Statement becomes effective, Effective Time and shall hold the Exchange Offer open for the period not less than 20 Business Days and not more than 30 Business Days (unless otherwise required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, law) and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is not less than 20 Business Days and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 120th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 5(a), (c), (d) and (e) hereof. The Company agrees, if requested by the Commission, that, prior to effectiveness of the Exchange Registration Statement, it will provide a supplemental letter to the Commission (A) stating that the Company is conducting the Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Company has not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Exchange Offer and that, to the Company's knowledge, each holder participating in the Exchange Offer shall be required to represent to is acquiring the Company that (i) any Exchange New Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder business and has no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange New Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed there is any change in law or to existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in Company is not permitted to effect the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable as contemplated by each such holder without restriction under the Securities ActSection 2(a) hereof, (ii) for any other reason the Exchange Offer has Registration Statement is not been completed declared effective within 360 180 calendar days following the Closing DateDate or the Exchange Offer is not consummated within 30 Business Days after the Exchange Registration Statement is declared effective (provided that, if the Exchange Registration Statement shall be declared effective after such 180-day period or if the Exchange Offer shall be consummated after such 30-Business Day period, then the Company's obligation under this clause (ii) arising from the failure of the Exchange Registration Statement to be declared effective within such 180-day period or the failure of the Exchange Offer to be consummated within 30 Business Days after the Exchange Registration Statement becomes effective, respectively, shall terminate), (iii) any Holder is not eligible to participate in the Exchange Offer or elects to participate in the Exchange Offer but does not receive freely tradeable Exchange Securities pursuant to the Exchange Offer or (iv) upon the written request of any of the Initial Purchaser so requests Purchasers within 90 days following the consummation of the Exchange Offer with respect to Registrable Securities that are not eligible permitted to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of or if the Initial Purchasers do not receive freely tradable Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating Securities in the Exchange Offer or such holder may not resell the Exchange Securities acquired Offer, then, in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder case of each of clauses (other than in either case i) through (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsiv), the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than the later of 90 days after the date on which the obligation Company is required to file such Shelf Registration Statement arises as provided in the immediately preceding paragraph and 180 days after the Closing Date and, subject to use their respective commercially reasonable efforts Section 2(f), to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restrictionoutstanding; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities included therein that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required prior to take any such action with respect to any such holders more than once every quarterbeing named therein. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, but only if such action occurs following amendment or supplement is not made available on the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveCommission's XXXXX System.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded promptly by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, special subject to the provisions of Sections 3(d)(ii) and 8(b), additional interest (“Special "Additional Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of until all Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodbeen cured.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) During any 365-day period, the Company may suspend the use of the prospectus forming part of the Shelf Registration Statement or, with respect to the use in any resales by a holder of Exchange Securities that is a broker-dealer, the Exchange Registration Statement, for up to four periods not to exceed 45 consecutive days (other than the consecutive 45-day period immediately prior to the stated maturity of the Securities) or an aggregate of 90 days in any 12-month period if the Board of Directors of the Company shall have determined in good faith that because of valid business reasons (not including avoidance of the Company's obligations hereunder), including the acquisition or divestiture of businesses or assets, availability and preparation of financial information relative to the Company, any subsidiary or any proposed acquisition, pending corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to suspending such use the Company provides the holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (CNF Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain specified transfer restrictions on transfer or and provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 365 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Ex- change Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted Securities for all the Registrable Securities validly that have been properly tendered in accordance with and not withdrawn before the terms expiration of the Exchange Offer, which shall be on a date that is not more than 45 days following the date the Exchange Registration Statement is declared effective. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior the Company and the Guarantors are not permitted to the time consummate the Exchange Offer is consummated existing because of a change in applicable law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 45 days following the Closing Date, date the Exchange Registration Statement is declared effective or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableon the date such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 365 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required or the Guarantors to take any such action with respect to any such holders file more than once every quarter. The Company further agrees to supplement or make amendments one post-effective amendment to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of in any such supplement or amendment promptly following its filing with the Commission. 45-day period.
(c) Notwithstanding the foregoing, the Company may suspend issue a notice that the availability of any Shelf Registration Statement (x) is no longer effective or the prospectus included therein is no longer usable for up offers and sales of Registrable Securities covered by the Shelf Registration Statement for a period not to an aggregate of exceed 60 days in the aggregate in any consecutive twelve-month period (a “Suspension Period”) if (i) such action is required by applicable law law; or (ii) due to the existence of material non-public information, disclosure of such action is taken material non-public information would be required to make the statements contained in the applicable registration statement not misleading (including for the avoidance of doubt, the pendancy of an acquisition, disposition or public or private offering by the Company), and the Company in good faith and has a bona fide business purpose for valid business reasons preserving as confidential such material non-public information (not including other than avoidance of the Company’s its obligations hereunder); provided that (x) as determined by the board of directors of the Company or an authorized committee thereof, including promptly thereafter complies with the acquisition or divestiture requirements of assets, or Section 3(d) hereof and (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation period of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when effectiveness for the Shelf Registration Statement may once again set forth in Section 2(b) hereof shall be used extended by the number of days during which such Shelf Registration Statement was not effective or is effectiveusable pursuant to the foregoing provisions.
(cd) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 45 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Defaults that Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall have occurred accrue and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above payable only with respect to a single Registration DefaultsDefault at any given time, notwithstanding the fact that multiple Registration Defaults may exist at such time.
(e) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonably necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Issuers agree to use their respective commercially reasonable best efforts to file under the Securities Act Act, within 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d2 (d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors Issuers agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 150 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuers further agrees agree to use its commercially their reasonable best efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effectivepromptly, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences Issuers commence the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Issuers agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or and such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 180 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial a Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors Issuers shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable best efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors Issuers agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become effective within 90 120 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable best efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first second anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be become eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company for resale pursuant to Rule 144 without volume restriction, if any; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company Issuers further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees Issuers agree to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 30 days in any consecutive twelve-month period if (i) such action is required by applicable law or law, (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof), including the acquisition or divestiture of assets, or (yiii) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuers have not filed the Exchange Offer has not been consummated within 360 Registration Statement nor a Shelf Registration Statement (applicable to all of the Registrable Securities) on or before 120 days after the Closing Date, or (ii) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before 150 days after the Closing Date, or (iii) the Exchange Offer has not been consummated within 180 days after the Closing Date, or (iv) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 120 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors Issuers are required to use their respective commercially reasonable best efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 30 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company Issuers pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 60 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iiiv) or (iiiv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final penultimate sentence of the first paragraph of Section 2(a) hereof the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Graphic Packaging Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) belowhereof, and subject to the penultimate sentence of this Section 2(a), if any Registrable Securities have not become Freely Tradable on or before the Free Trade Date, the Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to (i) file under the Securities Act Act, as soon as practicable, but no later than 30 days after the Free Trade Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Registrable Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, if any, which debt securities and Guarantees guarantees are substantially identical to the Securities and the any related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below hereof (such new debt securities and any guarantees are hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to , (ii) cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable thereafter, (iii) commence the Exchange Offer promptly after the Exchange Registration Statement has become effective, (iv) hold the Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to holders of Registrable Securities, (v) exchange Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer and (vi) complete the Exchange Offer promptly, but no later than 130 days after the Closing Free Trade Date (unless the Exchange Registration Statement is reviewed by the SEC, in which case within 190 days after the Free Trade Date). The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees Exchange Offer will be deemed to use its commercially reasonable efforts to commence have been “completed” only if the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer promptly after for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Registration Statement becomes effective, hold 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer open for and (ii) the period required by applicable law (including Company having exchanged, pursuant to any applicable interpretation by the staff of the Commission)Exchange Offer, but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to before the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will which shall be entitled to close the Exchange Offer 30 business days after on a date that is at least 20 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or and such time as such broker-dealers no longer own any Registrable Securities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and (e) hereof. The obligations of the Company set forth in this Section 2(a) shall cease on the date on which any and all Registrable Securities become Freely Tradable. Each holder participating of Registrable Securities who participates in the an Exchange Offer shall will be required to represent to the Company that in writing (i) any Exchange Securities received by such holder will which may be acquired contained in the ordinary course applicable letter of business, (iitransmittal relating to such Exchange Offer) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsRestricted Holder.
(b) If Subject to the last sentence of this Section 2(b), if any Registrable Securities have not become Freely Tradable on or before the Free Trade Date and (i) on at or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 130 days following after the Closing Date, Free Trade Date (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in unless the Exchange Registration Statement is not available for such resales reviewed by such holder (other than the SEC, in either which case (xwithin 190 days after the Free Trade Date) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (yiii) due any holder of Registrable Securities is not eligible to such holder’s inability to make the representations set forth participate in the second paragraph of Section 2(a) hereof) and any such holder so requestsExchange Offer, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a)) hereof, use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than 30 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 100 days after the date on which time the obligation to file a Shelf Registration Statement arises (unless such Shelf Registration Statement arises is reviewed by the Commission, in which case within 160 days of the date such obligation arises) and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or of such shorter period that will terminate when Shelf Registration Statement and such time as all the Registrable Securities covered by the Shelf Registration Statement have either been sold pursuant to as contemplated in the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 have become Freely Tradable or would be eligible shall cease to be sold by a person that is not an “affiliate” (as defined in Rule 144) of outstanding under the Company pursuant to Rule 144 without volume restrictionIndenture; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s The obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including set forth in this Section 2(b) shall cease on the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivedate on which all Registrable Securities become Freely Tradable.
(c) The Company and the Initial Purchasers agree that the holders of If any Registrable Securities will suffer damages if the Company and the Guarantors fail to fulfill their obligations under this Section 2 and that it would have not be feasible to ascertain the extent of such damages with precision. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective become Freely Tradable on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or Free Trade Date (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each the period during which a Registration Default has occurred and is continuing, a the “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b) hereof, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on the Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. The Registration Default Period shall terminate on the date on which (i) the Registrable Securities become Freely Tradable or (ii) or (iiiA) will be deemed cured upon consummation of the Exchange Registration Statement has been declared effective and the Exchange Offer in has been completed or (B) the case of a Shelf Registration Statement (if required pursuant to Section 2(b) hereof) has been declared effective. Notwithstanding anything to the contrary in this Section 2(c), Special Interest shall not accrue on any Registrable Security if the holder thereof failed to comply with its obligations to make the representations set forth in Section 2(a) hereof or failed to provide the information required to be filed due provided by it, if any, pursuant to a failure to consummate the Exchange Offer within the required time periodSection 3(d) hereof.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of a Shelf Registration Statement required pursuant to Section 2(a2(b) hereof the Exchange Registration Statement is suspended declared effective but thereafter either is withdrawn by the Company or ceases becomes subject to be effective a stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such that any broker-dealer that registration statement, Special Interest shall accrue at the rates specified in Section 2(c) hereof with respect to the date of such withdrawal or stop order until (i) receives Exchange the date on which the Registrable Securities in the Exchange Offer and become Freely Tradable, (ii) a replacement Shelf Registration Statement is subject to prospectus delivery requirements cannot fulfill such requirements, filed and declared effective or (iii) the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaultsstop order is withdrawn.
(e) The Company shall take, and the shall cause any Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the any Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(g) The Company shall use all commercially reasonable efforts to provide an unrestricted CUSIP to all Freely Tradable Securities.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Clearwater Paper Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company agrees and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d2(e) below (such new debt securities hereinafter called “Exchange Securities”). The Company agrees and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 no later than 240 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its all commercially reasonable efforts to commence consummate the Exchange Offer promptly no later than 40 business days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period at least 30 days, or longer, if required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business daysfederal securities laws, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company agrees and the Guarantors agree (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-broker dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on the Company and the Guarantors are not (A) required to file the Exchange Offer Registration Statement or prior (B) permitted to consummate the time Exchange Offer because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities policy; or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following consummation of the Exchange Offer or that (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, was prohibited by law or Commission policy from participating in the Exchange Offer or Offer, (B) such holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to the status of such holder as is a broker-dealer and holds Registrable Securities acquired directly from the Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsis an Affiliated Market Maker, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective all commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 30 days after the time such obligation to file arises (but no earlier than 120 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become be declared effective within by the Commission (unless it becomes automatically effective upon filing) on or prior to 90 days after the date on which the obligation to file filing of such Shelf Registration Statement arises (but no earlier than 240 days following the Closing Date) and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement continuously effective until the later of (A) the date on which no broker-dealer making a market in the Exchange Securities is deemed to remain effective for a period ending on be an affiliate of the Company and (B) the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the earlier time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restrictionoutstanding; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus or prospectus supplement forming a part thereof for resales of Registrable Securities unless such holder is an Electing HolderHolder or an Affiliated Market Maker, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any Affiliated Market Maker or holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such Affiliated Market Maker or holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall (A) relieve any such holder or Affiliated Market Maker of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required or the Guarantors to take any such action with respect to any such holders file more than once every quarterone post-effective amendment to the Shelf Registration Statement in any 45-day period. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder and Affiliated Market Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission.
(c) On the date of consummation of the Exchange Offer, the Company shall provide notice to the Representatives (as defined in the Purchase Agreement), as representatives of the several Purchasers, which notice shall state (i) that the Exchange Offer has been consummated and the date of consummation; (ii) whether any holders of Registrable Securities did not participate in the Exchange Offer; and (iii) if any holders of Registrable Securities did not participate in the Exchange Offer, to the extent reasonably available to the Company, the name, address and telephone number of each such holder who did not participate and the principal amount of Securities held by each such holder. Following the delivery of such notice, the Representatives shall be entitled, but in no way obligated, to contact each holder of Registrable Securities who did not participate in the Exchange Offer and, among other things, provide such holder with the information specified in clause (i) above.
(d) Notwithstanding the foregoing, the Company may suspend issue a notice that the availability of any Shelf Registration Statement (x) is no longer effective or that the prospectus included therein is no longer usable for up offers and sales of Registrable Securities covered by the Shelf Registration Statement for a period not to an aggregate of exceed 60 days in the aggregate in any consecutive twelve-month period (a “suspension period”) if (i) such action is required by applicable law law; or (ii) due to the existence of material non-public information, disclosure of such action is taken material non-public information would be required to make the statements contained in the applicable registration statement not misleading (including for the avoidance of doubt, the pendancy of an acquisition, disposition or public or private offering by the Company), and the Company in good faith and has a bona fide business purpose for valid business reasons preserving as confidential such material non-public information (not including other than avoidance of the Company’s its obligations hereunder); provided that (x) as determined by the board of directors of the Company or an authorized committee thereof, including promptly thereafter complies with the acquisition or divestiture requirements of assets, or Section 3(d) hereof and (y) with respect to a the required period of effectiveness for the Shelf Registration Period set forth in Section 2(b) hereof shall be extended by the number of days during which such Shelf Registration Statement required was not effective or usable pursuant to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveforegoing provisions.
(ce) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 60 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective (or becomes automatically effective upon filing) but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for additional interest as a result of such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on in an amount equal to $0.05 per week per $1,000 principal amount of Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until held by such time as all Registration Defaults have been cured at a per annum rate of 0.25% holder for the first 90 days of the Registration Default Period, which rate . The amount of Special Interest shall increase by an additional 0.25% during $0.05 per week per $1,000 principal amount of Registrable Securities with respect to each subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will cease. A for all Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Defaults of the Exchange Offer in the case $0.20 per week per $1,000 principal amount of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodRegistrable Securities.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(ef) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fg) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Visant Holding Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act within 90 days following the Time of Delivery, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”, ," and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially all reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing DateTime of Delivery. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially all reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the issue Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the The Exchange Offer, the Company Offer will be entitled deemed to close have been "completed" only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the for Registrable Securities validly tendered in accordance are, upon receipt, transferable by each such holder without need for further compliance with the terms Section 5 of the Exchange Offer. The Company and Securities Act (except for the Guarantors agree (x) requirement to include deliver a prospectus included in the Exchange Registration Statement a prospectus for use in any applicable to resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any of Exchange Securities received by such holder will broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities other than those acquired by the broker-dealer directly from the Company), and, subject to the proviso to Section 3(c)(vi) below, without material restrictions under the blue sky or securities laws of a substantial majority of the States of the United States of America. The Exchange Offer shall be acquired in deemed to have been completed upon the ordinary course earlier to occur of business, (i) the Company having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) at the time of Company having exchanged, pursuant to the commencement Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the expiration of the Exchange Offer such holder has no arrangements or understanding with any person to participate in Offer, which shall be on a date that is at least 30 days following the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.commencement
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under need for further compliance with Section 5 of the Securities Act, Act (ii) except for the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect requirement to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering deliver a prospectus and the prospectus contained included in the Exchange Registration Statement is not available for such applicable to resales by broker-dealers of Exchange Securities received by such holder (broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities other than in either case (x) due solely to those acquired by the status of such holder as an affiliate of broker-dealer directly from the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shallCompany), in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to ) the Company shall file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 90 days after the time such obligation to file arises and 180 days after the Time of Delivery, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). In addition, in the event that the Purchasers shall not have resold all of the Securities initially purchased by them from the Company pursuant to the Purchase Agreement prior to the consummation of the Exchange Offer, the Company shall file under the Securities Act as soon as practicable a Shelf Registration Statement. The Company and the Guarantors agree agrees to use their respective commercially all reasonable efforts (xi) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement continuously effective in order to remain effective permit the prospectus forming a part thereof to be usable by holders for resales of Registrable Securities for a period ending on the earlier of the first second anniversary of the Effective Time or and such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (yii) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (yii) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.the
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period or becomes effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during beginning on the date on which a Registration Default has occurred and is continuingcontinuing until cured, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of any Registration Default Period and at a per annum rate of 0.50% thereafter for the remaining portion of such Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Newfield Exploration Co /De/)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, practicable but in any event within 90 days after the Closing Date a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders Holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filingregistration, the “Shelf Registration” "SHELF REGISTRATION" and such registration statement, the “Shelf Registration Statement”"SHELF REGISTRATION STATEMENT"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 180 days after the date on which the obligation Closing Date and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (i) the first anniversary of time when the Effective Time or such shorter period that will terminate when all the Registrable Securities Debentures covered by the Shelf Registration Statement have been may be sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 under the Securities Act (assuming that no Holder at such date or would be eligible to be sold by a person that is not within the three-month period preceding such date was an “affiliate” affiliate of the Company) without any limitations under clauses (as defined in Rule 144c), (e), (f) and (h) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with under the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action date on which all Registrable Securities registered thereunder are disposed of in accordance with respect to any such holders more than once every quarterthe Shelf Registration. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder the Holders of the Registrable Securities copies of any such supplement or amendment promptly upon request following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability .
(b) Each Holder of any Shelf Registration Statement (x) for up Registrable Securities agrees that if such Holder wishes to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect sell Registrable Securities pursuant to a Shelf Registration Statement required and related Prospectus, it will do so only in accordance with this Section 2(b) and Section 3(g) of this Agreement. Each Holder of Registrable Securities wishing to be filed due sell Registrable Securities pursuant to a failure Shelf Registration Statement and related Prospectus agrees to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that deliver a Notice and Questionnaire to the Company shall promptly notify at least three (3) Business Days prior to any intended distribution of Registrable Securities under the Electing Holders when Shelf Registration. From and after the date the Shelf Registration Statement may once again is declared effective, the Company shall, from time to time after the date a Notice and Questionnaire is delivered, (i) if required by applicable law, file with the Commission a post-effective amendment to the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling security Holder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, the Company shall use its reasonable best efforts to cause such post-effective amendment to be used declared effective under the Securities Act as promptly as is practicable; (ii) provide such Holder copies of any documents filed pursuant to Section 2(b)(i) upon written request; and (iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(b)(i); PROVIDED that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(g) of this Agreement. Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling security Holder in any Shelf Registration Statement or is related Prospectus; provided, however, that any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(b) (whether or not such Holder was a Notice Holder at the time the Shelf Registration Statement was declared effective) shall be named as a selling security Holder in the Shelf Registration Statement or related Prospectus in accordance with the requirements of this Section 2(b).
(c) The Company and If any of the Initial Purchasers agree that following events (any such event a "REGISTRATION DEFAULT") shall occur, then liquidated damages (the holders "REGISTRATION DEFAULT DAMAGES") shall become payable in respect of Registrable the Securities will suffer damages if (in addition to the Company and interest otherwise due on the Guarantors 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. In the event that Securities) as follows:
(i) Exchange Offer has if the Shelf Registration Statement is not been consummated filed with the Commission within 360 90 days after the Closing Date, or then commencing on the 91st day after the Closing Date, Registration Default Damages shall accrue on the Applicable Principal Amount of any outstanding Debentures that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days following such 91st day and an additional 0.25% per annum at the beginning of each subsequent 90-day period; or
(ii) if a the Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective by the Commission on or before prior to the 180th day following the Closing Date, then commencing on the 181st day after the Closing Date, Registration Default Damages shall accrue on the Applicable Principal Amount of any outstanding Debentures that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days after following such 181st day and an additional 0.25% per annum at the date on which the obligation to file beginning of each subsequent 90-day period; or
(iii) if the Shelf Registration Statement arises, or (iii) if any has been declared effective but such Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease ceases to be effective (other than pursuant to Section 3(g) of this Agreement) at any time prior to the earlier of (A) the time when the Debentures covered by action the Shelf Registration Statement may be sold pursuant to Rule 144 under the Securities Act (assuming that no Holder at such date or within the three-month period preceding such date was an affiliate of the Company pursuant to the second paragraph of Section 2(b) hereofCompany) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in any limitations under clauses (i) through (iiic), a “(e), (f) and (h) of Rule 144 under the Securities Act or (B) the date at which all Registrable Securities registered under the Shelf Registration Default” and each period during which a Statement are disposed of in accordance therewith, then commencing on the day such Shelf Registration Statement ceases to be effective, Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, Damages shall accrue on the Applicable Principal Amount of any outstanding Debentures that are Registrable Securities for and the Registration Default Period (but only with respect to one Registration Default at Applicable Conversion Price of any particular time) until such time as all Registration Defaults have been cured outstanding Shares that are Registrable Securities at a per annum rate of 0.25% per annum for the first 90 days of following such date on which the Shelf Registration Default Period, which rate shall increase by ceases to be effective and an additional 0.25% during per annum at the beginning of each subsequent 90-day period, up to a maximum ; or
(iv) if the aggregate duration of 0.50% regardless of Deferral Periods in any period exceeds the number of Registration Defaults that shall have occurred and be continuing. Following days permitted in respect of such period pursuant to Section 3(g) of this Agreement, then commencing on the cure day the aggregate duration of all Registration DefaultsDeferral Periods in any period exceeds the number of days permitted in respect of such period, the accrual of Special Interest will cease. A Registration Default under Damages shall accrue on the Applicable Principal Amount of any outstanding Debentures that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days and an additional 0.25% per annum at the beginning of each subsequent 90-day period; PROVIDED, HOWEVER, that the Registration Default Damages rate on the Securities shall not exceed in the aggregate 1.00% per annum; PROVIDED FURTHER, HOWEVER, that (1) upon the filing of the Shelf Registration Statement (in the case of clause (i) above), (2) upon the effectiveness of the Shelf Registration Statement (in the case of clause (ii) or above), (iii3) will be deemed cured upon consummation the effectiveness of the Exchange Offer Shelf Registration Statement which had ceased to remain effective (in the case of clause (iii) above), (4) upon the termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods in a Shelf Registration Statement required period set forth in Section 3(g) to be filed due to a failure to consummate the Exchange Offer within the required time period.
exceeded (d) If during the 90 day period referenced in the final sentence case of clause (iv) above) or (5) upon the termination of certain transfer restrictions on the Securities as a result of the first paragraph application of Section 2(a) hereof Rule 144(k), Registration Default Damages on the Exchange Registration Statement is suspended by the Company or ceases to be effective Securities as a result of such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereofclause, as applicablethe case may be, shall cease to accrue.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Registrable Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActAct (other than such changes to the Indenture or any such trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the Trust Indenture Act or which eliminate the transfer restrictions on the Securities or provisions for the payment of additional interest contemplated in Section 2(c) below)), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 240 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to commence, and to use its their commercially reasonable efforts to commence complete, the Exchange Offer promptly promptly, but no later than 21 business days after such registration statement has become effective or such later date as is required by the Exchange Registration Statement becomes effectiveSecurities Act, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to use their commercially reasonable efforts to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers are no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, in connection with offers and does not intend to engage in, the distribution sales of the Exchange Securities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (v) if such holder is a broker-dealerc), that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) the Company is not permitted to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy; (ii) any holder of Registrable Securities notifies the Company in writing prior to the 20th day following consummation of the Exchange Offer that: (a) it is prohibited by applicable law in the United States or policy of the Commission from participating in the Exchange Offer; (b) it may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales or (c) it is a broker-dealer and owns Exchange Securities acquired directly from the Company or an affiliate of the Company, or (iii) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than 120 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the applicable Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any applicable Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to Holder, take any action reasonably necessary to enable any such holders to use the prospectus forming a part of the Shelf Registration Statement for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder security holder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that the Company and the Guarantors shall not be obligated to amend the prospectus forming a part of the Shelf Registration Statement to update the selling security holders named therein on more than one occasion in any ninety (i90) day period, provided, further, however, that nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and provided, further, that the failure of a Shelf Registration Statement to remain effective due to the filing of any amendment to such Shelf Registration Statement pursuant to this clause (iiy) shall not constitute a Registration Default (as defined below) or a breach of this Agreement, so long as the Company shall not and the Guarantors use their commercially reasonable efforts to cause such Shelf Registration Statement, as so amended, to be required declared effective as soon as reasonably practicable, but in any event within 30 days of such failure to take any such action with respect to any such holders more than once every quarterremain effective. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees and the Guarantors agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 21 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effectiveeffective but shall thereafter fail to be usable for its intended purposes, and during the period be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless 2.0%. Notwithstanding anything to the contrary set forth herein, (w) upon filing of the number Exchange Registration Statement or the Shelf Registration Statement, as the case may be, in the case of clause (i) above, (x) upon the effectiveness of the Exchange Registration Defaults that shall have occurred and be continuing. Following Statement or the cure Shelf Registration Statement, as the case may be, in the case of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or above, (iiiy) will be deemed cured upon consummation of the Exchange Offer Offer, in the case of a Shelf clause (iii) above, or (z) upon the occurrence of any event (including the filing of an appropriate amendment to the relevant Registration Statement, the declaring effective of another Registration Statement required to be filed due to a failure to consummate or the Exchange Offer within the required time period.
(dtaking of other appropriate action) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof that causes the Exchange Registration Statement is suspended or the Shelf Registration Statement, as the case may be, to again be declared effective or made usable in the case of clause (iv) above, the Special Interest payable as a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease to accrue. Any amounts of Special Interest due pursuant to this Section 2(c) shall be payable by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities the Trustee, on behalf of the holders of the relevant Securities, in cash on the interest payment dates specified in the Exchange Offer and (iirelevant Securities, commencing with the first such interest payment date occurring after any such Special Interest commences to accrue. The Special Interest provided for in this Section 2(c) is subject shall be the exclusive monetary remedy available to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to holders of Securities for Registration Defaults.
(ed) The Company and the Guarantors shall use their commercially reasonable efforts to take all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonably necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Advanced Audio Concepts, LTD)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company agrees to file, and to cause the Guarantors agree Guarantors, if any, to use their respective commercially reasonable efforts to file file, under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Registrable Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, if any, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act) (other than such changes to the Indenture or any such trust indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the Trust Indenture Act or which eliminate the transfer restrictions on the Securities or provisions for the payment of additional interest contemplated in Section 2(c) below), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer a restrictive legend or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company agrees to use, and to cause the Guarantors agree Guarantors, if any, to use their respective use, all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its use, and to cause the Guarantors, if any, to use, all commercially reasonable efforts to commence (A) complete the Exchange Offer promptly promptly, but no later than 30 business days after the such Exchange Registration Statement becomes has become effective, or such later date as is required by the Securities Act, (B) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and (C) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted Securities for all the Registrable Securities validly that have been properly tendered in accordance with and not withdrawn before the terms expiration of the Exchange Offer. Each holder who participates in the Exchange Offer will be required to represent (i) that any Exchange Securities received by it will be acquired in the ordinary course of its business, (ii) that at the time of the consummation of the Exchange Offer, such holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Securities, (iii) that such holder is not an affiliate of the Company or any Guarantor within the meaning of the Securities Act, and (iv) any additional representations that in the written opinion of counsel to the Company are necessary under then-existing rules or regulations (or interpretations thereof) of the Commission in order for the Exchange Registration Statement to be declared effective. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to use all commercially reasonable efforts to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers are no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, in connection with offers and does not intend to engage in, the distribution sales of the Exchange Securities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (v) if such holder is a broker-dealerc), that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior the Company and the Guarantors, if any, are not required to the time file the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities ActRegistration Statement, (ii) the Company and the Guarantors, if any, are not permitted to consummate the Exchange Offer has because the Exchange Offer is not been completed within 360 days following the Closing Date, permitted by applicable law or Commission policy or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th day following consummation of the Exchange Offer or that: (iva) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer; (b) it may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xc) due solely to it is a broker-dealer and owns Exchange Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, the Company and the Guarantors Guarantors, if any, shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a)) hereof, use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 45 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company agrees to use, and to cause the Guarantors agree Guarantors, if any, to use their respective use, all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the such obligation arises and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) on no more than one occasion after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder (1) mail the Notice and Questionnaire to all holders of Registrable Securities that are not then Electing Holders and (2) not more than 60 nor less than 45 days after mailing the Notice and Questionnaire, take any action reasonably necessary to enable any such holders providing a completed and signed Notice and Questionnaire to the Company to use the prospectus forming a part of the Shelf Registration Statement for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder security holder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof hereof, provided, further, that the failure of a Shelf Registration Statement to remain effective due to the filing of any amendment to such Shelf Registration Statement pursuant to this Clause (y) shall not constitute a Registration Default (as defined below) or a breach of this Exchange and (ii) Registration Rights Agreement, so long as the Company shall not uses all commercially reasonable efforts to cause such Shelf Registration Statement, as so amended, to be required to take any such action with respect to any such holders more than once every quarterdeclared effective as soon as reasonably practicable. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company and the Guarantors, if any, for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 40 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable at $.05 per week per $1,000 principal amount of Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate . Such Special Interest shall increase by an additional 0.25% during each $.05 per week per $1,000 principal amount of Securities for every subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will ceasefor all Registration Defaults of $.30 per week per $1,000 principal amount of Securities. A Notwithstanding anything to the contrary set forth herein, (w) upon filing of the Exchange Registration Default under Statement or the Shelf Registration Statement, as the case may be, in the case of clause (i) above, (x) upon the effectiveness of the Exchange Registration Statement or the Shelf Registration Statement, as the case may be, in the case of clause (ii) or above, (iiiy) will be deemed cured upon consummation of the Exchange Offer Offer, in the case of a clause (iii) above, or (z) upon the occurrence of any event (including the filing of an appropriate amendment to the relevant Registration Statement, the declaring effective of another Registration Statement or the taking of other appropriate action) that causes the Exchange Registration Statement or the Shelf Registration Statement required Statement, as the case may be, to again be filed declared effective or made usable in the case of clause (iv) above, the Special Interest payable as a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease to accrue. Any amounts of Special Interest due pursuant to a failure this Section 2(c) shall be payable by the Company to consummate the Exchange Offer within Trustee, on behalf of the required time periodholders of the relevant Securities, in cash on the interest payment dates specified in the relevant Securities, commencing with the first such interest payment date occurring after any such Special Interest commences to accrue. The Special Interest provided for in this Section 2(c) shall be the exclusive monetary remedy available to holders of Securities for Registration Defaults.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages use all commercially reasonable efforts to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect take, and shall cause the Guarantors, if any, to Registration Defaults.
(e) The Company and the Guarantors shall take use all commercially reasonable efforts to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonably necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Universal Hospital Services Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuer and the Guarantor further agrees agree to use its commercially reasonable their best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Purchaser for any Securities acquired directly from the Company within Issuer and the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsGuarantor, the Company Issuer and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days in the case of clause (i) or (ii) and 90 days in the case of clause (iii) after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivehereof.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period Issuer or the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company Issuer and the Guarantors Guarantor shall each take all actions reasonably reasonable and necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonable and necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Each holder of Registrable Securities hereby acknowledges and agrees that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpxxxxx ix xxx Xommission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action lettexx; xxx (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of Exchange Securities obtained by such holder in exchange for Registrable Securities acquired by such holder directly from the Issuer or one of its affiliates. Accordingly, the Issuer's obligation to accept for exchange a holder's Registrable Securities tendered in the Exchange Offer shall be conditioned upon such holder representing to the Issuer that, at the time of the consummation of the Exchange Offer:
(i) that any Exchange Securities received by such holder will be acquired in the ordinary course of such holder's business;
(ii) that such holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Registrable Securities acquired as a result of market making activities or other trading activities and acknowledges that such holder will deliver a prospectus in connection with any resale of the Exchange Securities.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Berkshire Hathaway Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective all commercially reasonable efforts to file under the Securities Act Act, no later than 180 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Unless the Exchange Offer will would not be registered permitted by applicable law or Commission policy, the Company further agrees to use all commercially reasonable efforts to register under the Securities Act on the appropriate form and will comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Offer Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the period Commission under the Exchange Act, or longer if required by applicable law the federal securities laws and (including pursuant iii) issue on or prior to any applicable interpretation by the staff of the Commission), but in any event for at least 10 40 business days, or longer if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities in exchange for the Securities tendered prior thereto in the Exchange Offer. The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and exchange related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to before the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will which shall be entitled to close the Exchange Offer on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Offer Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective all commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 60 days after the time such obligation to file arises (but no earlier than 180 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 270 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 180 days after the Closing Date or 60 days after such filing obligation arises); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (a) one year after the first anniversary of the Effective Time or such shorter period that will terminate when all the Registrable Securities covered by date the Shelf Registration Statement have been sold pursuant to is declared effective and (b) the Shelf Registration Statement or date on which all Registrable Securities registered thereunder are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined disposed of in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no accordance therewith. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required to take any such action with respect to any such holders file more than once every quarter. The Company further agrees to supplement or make amendments one post effective amendment to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable Statement in any 45 day period. Notwithstanding anything to the registration form used by contrary in this Section 2(b), upon notice to the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) Statement, or extend the time period in which it is required to file the Shelf Registration Statement, for up to an aggregate of 30 consecutive days and up to 60 days in the aggregate, in each case in any consecutive twelve12-month period (each a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken the Company delivers a written certificate to the Electing Holders signed by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors Chief Financial Officer of the Company or an authorized committee thereof, including certifying that the acquisition or divestiture Board of assets, or (y) with respect to Directors of the Company has determined that there is a valid business purpose for suspension of the Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Offer Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement (other than the Exchange Offer Registration Statement, if the Exchange Offer is not permitted by applicable law or Commission Policy) has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 40 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest subject to the provisions of Section 9(b), Special Interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the The accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will shall be deemed cured upon consummation the exclusive monetary remedy available to the Holders of the Exchange Offer in the case of a Shelf Registrable Securities for any Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Offer Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Notwithstanding anything to the contrary in this Agreement, the obligation of the Company under this Section 2 shall terminate with respect to any Security that ceases to be a Registrable Security in accordance with the definition of “Registrable Securites.”
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Dycom Industries Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, on or prior to 360 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities Notes for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively Notes (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange SecuritiesNotes”). The Exchange Notes will be issued as evidence of the same continuing indebtedness of the Company and will not constitute the Guarantors agree creation of new indebtedness. The Company agrees to use their respective commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 on or prior to 450 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable best efforts to (i) commence and complete the Exchange Offer promptly after on or prior to 45 Business Days (or longer to the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period extent required by applicable law United States federal securities laws) after such registration statement has become effective and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and ii) exchange the Exchange Securities Notes for all Registrable Securities Notes that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the Exchange Notes received by holders other than Restricted Holders in the Exchange Offer for Notes 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Notes for all Notes that have been properly tendered and not withdrawn before the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms expiration of the Exchange Offer. The Company and the Guarantors agree (x) agrees to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities Notes that is a broker-dealer dealer, which has acquired such Notes for its own account as a result of market-making activities or other trading activities and (y) not directly from the Company, and to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as the Company reasonably believes that such broker-dealers no longer own any Registrable SecuritiesNotes, other than Notes acquired from the Company. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on the Company is not (A) required to file the Exchange Offer Registration Statement; or prior (B) permitted to consummate the time Exchange Offer because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities policy, or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) any holder of Transfer Restricted Securities notifies the Exchange Offer has not been completed within 360 days Company in writing prior to the 20th day following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or that (ivX) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by applicable law or Commission policy from participating in the Exchange Offer or such holder Offer; (Y) that it may not resell the Exchange Securities Notes acquired by it in the Exchange Offer to the public in the United States without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder resales; or (other than in either case (xZ) due solely to it is a broker-dealer and owns Notes acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, the Company and the Guarantors shall, in lieu of will (or, in the case of clauses (iiii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableon or prior to 60 days after such filing obligation arises (but no earlier than 360 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Transfer Restricted Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)affected thereby, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 on or prior to 150 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises and (but not earlier than 450 days after the Closing Date). The Company agrees to use their respective commercially its reasonable best efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or such shorter period that will terminate when all the Registrable time as there are no longer any Transfer Restricted Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities Notes unless such holder is an Electing Holder. The Company agrees, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Transfer Restricted Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Offer Registration Statement or the Shelf Registration Statement prior to the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission prior to the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively (the “Effectiveness Target Date”), or (iii) the Exchange Offer has not been consummated completed within 360 days 45 Business Days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b2(a) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to or Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective but thereafter ceases to be effective or usable in connection with resales of Transfer Restricted Securities during the time periods specified herein (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only to each holder of Transfer Restricted Securities, with respect to the first 90-day period immediately following the occurrence of the first Registration Default, in an amount equal to US$0.05 per week per US$1,000 principal amount of Transfer Restricted Securities held by such holder. The amount of Special Interest will increase by an additional US$0.05 per week per US$1,000 principal amount of Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Special Interest for all Registration Defaults of US$0.25 per week per US$1,000 principal amount of Transfer Restricted Securities. The Company shall not be required to pay Special Interest for more than one Registration Default at any particular given time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) All accrued Special Interest through each record date with respect to the succeeding Interest Payment Date will be deemed cured upon consummation of paid by the Exchange Offer Company on each Interest Payment Date (as defined in the case Indenture) to the Global Note Holder (as defined in the Indenture) by wire transfer of a Shelf Registration Statement required immediately available funds or by federal funds check and to be filed due holders of Certificated Notes (as defined in the Indenture) by wire transfer to a failure the accounts specified by them or by mailing checks to consummate the Exchange Offer within the required time periodtheir registered addresses if no such accounts have been specified.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages use its reasonable best efforts to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Millar Western Forest Products LTD)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Subsidiary Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Subsidiary Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Subsidiary Guarantors agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Subsidiary Guarantors further agrees agree to use its commercially their reasonable best efforts to (i) commence and complete the Exchange Offer promptly on or prior to 30 business days, or longer, if required by the federal securities laws, after the Exchange Registration Statement becomes such registration statement has become effective, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without further compliance with Section 5 of the Securities Act (except for the requirement to deliver a prospectus included in the Exchange Registration Statement applicable to resales by broker-dealers of Exchange Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities other than those acquired by the broker-dealer directly from the Company) and without material restrictions under the blue sky or securities laws of a substantial majority of the States of the United States of America. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer (where such Exchange Security was received by a broker-dealer in an Exchange Offer in exchange for a Registrable Security that was acquired by such broker-dealer for its own account as a result of market-making or other trading activities, so long as such Registrable Security was not acquired directly from the Company or an affiliate of the Company) and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on the Company and the Subsidiary Guarantors are not (A) required to file the Exchange Registration Statement; or prior (B) permitted to consummate the time Exchange Offer, because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Actpolicy, (ii) any holder of Registrable Securities notifies the Exchange Offer has not been completed within 360 days Company in writing prior to the 20th day following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or that (ivX) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by applicable law or Commission policy from participating in the Exchange Offer Offer, or such holder (Y) that it may not resell the Exchange Securities Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder resales; or (other than in either case (xZ) due solely to that it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act Company, or (yiii) due to such holder’s inability to make the representations set forth in Exchange Offer has not been completed within 225 days following the second paragraph of Section 2(a) hereof) and any such holder so requestsClosing Date, the Company and the Subsidiary Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), will use their respective commercially reasonable best efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than on or prior to 60 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)affected thereby, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors Subsidiary Guarantors, jointly and severally, agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the such obligation arises and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing HolderHolder who agrees to be bound by all of the provisions of this Agreement applicable to such holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Subsidiary Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company and the Subsidiary Guarantors for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to shall furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Subsidiary Guarantors have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 30 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effectiveeffective but shall thereafter, and during prior to the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the time such Exchange Registration Statement or Shelf Registration Statement is no longer required to remain effective, (x) the Company shall have suspended the Shelf Registration Statement be effective pursuant to Section 2(a) or 2(b) hereof for more than 60 days in either be withdrawn by the aggregate in any consecutive twelve-month period and be continuing Company or the Subsidiary Guarantors or shall become subject to suspend the availability an effective stop order issued pursuant to Section 8(d) of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only accrue, with respect to one the first 90-day period immediately following the occurrence of the first Registration Default at any particular time) Default, in an amount equal to $.05 per week per $1,000 principal amount of Securities held by the Holders. The amount of Special Interest will increase by an additional $.05 per week per $1,000 principal amount of Securities with respect to each subsequent 90-day period until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day periodcured, up to a maximum amount of 0.50% regardless of the number of Special Interest for all Registration Defaults that shall have occurred and be continuingof $.50 per week per $1,000 principal amount of Securities. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) All accrued Special Interest through each record date with respect to the succeeding Interest Payment Date will be deemed cured upon consummation of paid by the Exchange Offer Company and the Guarantors on each Interest Payment Date (as defined in the case Indenture) to the Global Note Holder (as defined in the Indenture) by wire transfer of a Shelf Registration Statement required immediately available funds or by federal funds check and to be filed due Holders of Certificated Notes (as defined in the Indenture) by wire transfer to a failure the accounts specified by them or by mailing checks to consummate the Exchange Offer within the required time periodtheir registered addresses if no such accounts have been specified.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall cause the Subsidiary Guarantors to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Subsidiary Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Asbury Automotive San Diego LLC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuer and the Guarantors agree to use their respective commercially reasonable efforts to (i) cause the Exchange Offer Registration Statement to be declared effective or to become effective under the Securities Act within 270 and (ii) complete the Exchange Offer no later than 365 days after the Closing Date. The Exchange Offer will shall be registered under the Securities Act on the appropriate form and will shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuer further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Offer Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the period Commission under the Exchange Act, or longer if required by applicable law the federal securities laws and (including iii) issue on or prior to 30 Business Days, or longer if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities in exchange for the Registrable Securities tendered prior thereto in the Exchange Offer. The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Issuer having exchanged, pursuant to any applicable interpretation by the staff of the Commission)Exchange Offer, but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to before the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will which shall be entitled to close the Exchange Offer 30 business days after on a date that is at least 20 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree Issuer agrees (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 120th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed, the Exchange Offer is not permitted by applicable law or Commission policy or existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 365 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuer prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Notes acquired directly from the status of such holder as Issuer or an affiliate of the Company within Issuer, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company Issuer and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuer and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises filing obligation arises; provided, that if at any time the Issuer is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuer and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuer and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (a) one year after the first anniversary of the Effective Time or such shorter period that will terminate when all the Registrable Securities covered by date the Shelf Registration Statement have been sold pursuant to is declared effective and (b) the date on which all Registrable Securities registered thereunder are disposed of in accordance therewith (the “Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no Period”). No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Issuer and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration StatementStatement and until the end of the Shelf Registration Period, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use their respective commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(iii) hereof and (ii) ). Notwithstanding anything to the Company shall not be contrary in this Section 2(b), upon notice to the Electing Holders, the Issuer may suspend the use or the effectiveness of such Shelf Registration Statement, or extend the time period in which it is required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to file the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 30 consecutive days and up to 75 days in the aggregate, in each case in any consecutive twelve12-month period (each a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company Board of Directors of the Issuer determines reasonably and in good faith and for that there is a valid business reasons (not including avoidance purpose for suspension of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company Issuer shall use its commercially reasonable efforts to promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(b), (ii) the Exchange Offer has not been consummated completed within 360 365 days after following the Closing Date, or Date (ii) if a Shelf Registration Statement the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any the Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuer or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) except as specifically permitted herein, including during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), as further specified in this Section 2, a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for then outstanding (but, following the Registration Default Period (but completion of the Exchange Offer, only with respect to one Registration Default at any particular timeon the principal amount of such Notes that could not be exchanged as specified or were not exchanged as specified in Section 2(a)) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for and shall increase at a per annum rate of 0.25% on the first date that is 90 days of after the Registration Default Period, which rate shall increase by an additional 0.25% during date for each subsequent 90-day period, up period that such Special Interest continues to accrue; provided that the rate at which Special Interest accrues may in no event exceed 1.00% per annum (such Special Interest to be calculated by the Issuer). Special Interest shall accrue and be payable only with respect to a maximum of 0.50% regardless of single Registration Default at any given time, notwithstanding the number of fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the accrual The payment of Special Interest will cease. A Registration Default under clause (ii) or (iii) will shall be deemed cured upon consummation the sole and exclusive monetary remedy available to the holders of the Exchange Offer in Registrable Securities for any Registration Default. Notwithstanding any other provision of this Section 2(c), (A) no such Special Interest shall accrue during a Suspension Period permitted by Section 2(b) and (B) a holder (including, for the case avoidance of doubt, any holder that is a broker-dealer) that is not entitled to the benefits of a Shelf Registration Statement required shall not be entitled to be filed due Special Interest with respect to a failure any Registration Default that pertains to consummate the Exchange Offer within the required time periodsuch Shelf Registration.
(d) If during the 90 day period referenced in the final sentence The Issuer shall take, and shall cause each of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases Guarantors to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirementstake, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Offer Registration Statement or 2(b) hereofShelf Registration Statement, as applicable, on the terms set forth herein.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Registration Rights Agreement (Par Pharmacuetical, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Subsidiary Guarantors, which debt securities and Guarantees subsidiary guaranties are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly as soon as practicable after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that may legally be exchanged in the Exchange Offer and that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and subsidiary guaranties received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act (except for the requirement to deliver a prospectus included in the Exchange Offer Registration Statement applicable to resales by broker-dealers of Exchange Securities received by them pursuant to the Exchange Offer in exchange for Securities other than those acquired by such broker-dealers directly from the Company) 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, the Company will Exchange Securities for all Registrable Securities that may legally be entitled to close exchanged in the Exchange Offer and that have been properly tendered and not withdrawn before the expiration of the Exchange Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) (other than resales by broker-dealers of Exchange Securities received by them pursuant to the Exchange Offer in exchange for Securities acquired by them directly from the Company) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective effective, and to amend and supplement the prospectus contained therein as necessary, for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable SecuritiesSecurities (or for such longer period if extended pursuant to the terms of this Agreement). Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSections 6(a), (iic), (d) at the time of the commencement and (e) hereof. If, upon consummation of the Exchange Offer such holder has no arrangements or understanding Offer, any Purchaser holds Securities acquired as part of its initial distribution, the Company, simultaneously with any person to participate in the distribution delivery of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act pursuant to the extent applicableExchange Offer, (iv) if shall issue and deliver to such holder is not a broker-dealerPurchaser, that it is not engaged inupon written request of such Purchaser, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for the Securities that were acquired as held by such Purchaser, a result like principal amount of market-making activities or other trading activities (other than Securities acquired directly from debt securities of the Company or any of its affiliates) issued under the Indenture and that it will deliver a prospectus identical in connection with any resale of such all material respects to the Securities (the “Private Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsSecurities”).
(b) If Subject to Section 3(i), if (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees Subsidiary Guaranties received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities ActAct (except for the requirement to deliver a prospectus included in the Exchange Offer Registration Statement applicable to resales by broker-dealers of Exchange Securities received by them pursuant to the Exchange Offer in exchange for Securities other than those acquired by such broker-dealers directly from the Company), (ii) the Exchange Offer has not been completed within 360 220 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable the Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) the Exchange Offer is not available to any holder of the Securities (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from a broker-dealer participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsOffer), the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and or (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 75 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 (a) in the case of clause (i) above, no later than 180 days after the Closing Date, and (b) in the case of clause (ii), (iii) or (iv) above, no later than 75 days after the date on which the obligation to file such Shelf Registration Statement arises and is filed; and, subject to use their respective commercially reasonable efforts Section 3(i), to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time (or for such shorter longer period that will terminate when all the Registrable Securities covered by the Shelf Registration Statement have been sold if extended pursuant to the Shelf Registration Statement terms of this Agreement) or such time as there are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restrictionno longer any Registrable Securities outstanding; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder agrees in writing to be bound by all of the provisions of this Agreement and such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 days completed on or before the 40th day after the Closing Dateinitial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made) or (iv) any Shelf Registration Suspension exceeds the number of days permitted for such suspension under Section 3(i), or (iiv) if a Shelf any Exchange Offer Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded as promptly as practicable by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special subject to the provisions of Section 9(b), additional interest (“Special Additional Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall cause the Subsidiary Guarantors to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Registration Rights Agreement (Encore Acquisition Co)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"); provided that if at the end of such 90-day period the Company has filed with the Commission a registration statement with respect to an initial public offering of its common stock which has not been declared effective by the Commission at such time, the Company will have an additional 30 days to file an Exchange Registration Statement. The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but not later than 180 days after the Closing Date; provided that if the proviso of the preceding sentence is applicable, then the Company shall have an additional 30 days to have the Exchange Registration Statement declared effective. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence complete the Exchange Offer promptly on or prior to 30 business days, or longer, if required by the federal securities laws, after the date on which the Exchange Registration Statement becomes effective, hold is declared effective by the Commission. The Exchange Offer open for the period required by applicable law (including pursuant will be deemed to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to "completed" only if the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Transfer Restricted Securities are not or would not beare, upon receipt, transferable by each such holder without restriction under the Securities Act, 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company having exchanged the Exchange Securities for all outstanding Transfer Restricted Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer has not been completed within 360 days following the Closing DateOffer, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in for all Transfer Restricted Securities that
(b) If (i) the Company is not permitted to consummate the Exchange Offer and held because the Exchange Offer is not permitted by it applicable law or Commission policy or (ii) any holder of Securities notifies the Company prior to the 20th day following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering is a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsRestricted Holder, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective its commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but not later than 60 days after the time such obligation to file arises (but in no event earlier than 90 days (or, in the event the proviso of the first sentence of Section 2(a) is applicable, 120 days) after the Closing Date), a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Transfer Restricted Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 as soon as practicable, but not later than 150 days after such obligation arises (but in no event earlier than 180 days (or, in the date on which event that the obligation proviso in the first sentence of Section 2(a) is applicable, 210 days) after the Closing Date) and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter time as there are no longer any Transfer Restricted Securities outstanding, except during a period that will terminate when all the Registrable Securities covered by a material nonpublic transaction would be required to disclosed in the Shelf Registration Statement under the Securities Act and the rules and regulations promulgated thereunder and such disclosure would have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) adverse effects on business of the Company pursuant to Rule 144 without volume restriction; (provided that such period shall not exceed 30 consecutive business days), provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Transfer Restricted Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Transfer Restricted Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.the
Appears in 1 contract
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, on or prior to 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Offer Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Transfer Restricted Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”Notes"). The Exchange Notes will be issued as evidence of the same continuing indebtedness of the Company and will not constitute the Guarantors agree creation of new indebtedness. The Company agrees to use their respective commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 on or prior to 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly after Offer, on or prior to 45 business days (or longer to the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period extent required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, United States federal securities laws) after such registration statement has become effective and exchange the Exchange Securities Notes for all Registrable Transfer Restricted Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities received by holders other than Restricted Holders in the Exchange Offer for Transfer Restricted 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Notes for all outstanding Transfer Restricted Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Notes for all Transfer Restricted Securities that have been properly tendered and not withdrawn before the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms expiration of the Exchange Offer. The Company and the Guarantors agree (x) agrees to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities Notes that is a broker-dealer dealer, which has acquired such Transfer Restricted Securities for its own account as a result of market-making activities or other trading activities and (y) not directly from the Company, and to keep such Exchange Offer Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as the Company reasonably believes that such broker-dealers no longer own any Registrable Transfer Restricted Securities, other than Transfer Restricted Securities acquired from the Company. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on the Company is not (A) required to file the Exchange Offer Registration Statement; or prior (B) permitted to consummate the time Exchange Offer because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities policy, or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) any holder of Transfer Restricted Securities notifies the Exchange Offer has not been completed within 360 days Company in writing prior to the 20th day following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or that (ivX) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by applicable law or Commission policy from participating in the Exchange Offer Offer; or such holder (Y) that it may not resell the Exchange Securities Notes acquired by it in the Exchange Offer to the public in the United States without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder resales; or (other than in either case (xZ) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to will file under the Securities Act as promptly as reasonably practicableAct, on or prior to 60 days after such obligation arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Transfer Restricted Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)affected thereby, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 on or prior to 150 days after the date on which the such obligation arises and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the Registrable time as there are no longer any Transfer Restricted Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Transfer Restricted Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Transfer Restricted Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or prior to the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or prior to the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively (the "Effectiveness Target Date") or (iii) the Exchange Offer has not been consummated completed within 360 45 business days after the Closing Dateinitial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made), or (iiiv) if a Shelf any Exchange Offer Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease effective but thereafter ceases to be effective (other than by action or usable in connection with resales of Transfer Restricted Securities during the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective time periods specified herein (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only to each holder of Transfer Restricted Securities, with respect to the first 90-day period immediately following the occurrence of the first Registration Default, in an amount equal to US$0.05 per week per US$1,000 principal amount of Transfer Restricted Securities held by the Holders. The amount of Special Interest will increase by an additional US$0.05 per week per US$1,000 principal amount of Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Special Interest for all Registration Defaults of US$0.50 per week per US$1,000 principal amount of Transfer Restricted Securities. The Company shall not be required to pay Special Interest for more than one Registration Default at any particular given time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) All accrued Special Interest through each record date with respect to the succeeding Interest Payment Date will be deemed cured upon consummation of paid by the Exchange Offer Company on each Interest Payment Date (as defined in the case Indenture) to the Global Note Holder (as defined in the Indenture) by wire transfer of a Shelf Registration Statement required immediately available funds or by federal funds check and to be filed due Holders of Certificated Notes (as defined in the Indenture) by wire transfer to a failure the accounts specified by them or by mailing checks to consummate the Exchange Offer within the required time periodtheir registered addresses if no such accounts have been specified.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages use its reasonable best efforts to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Millar Western Forest Products LTD)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 690 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 720 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 720 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, Default special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the any Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Great North Imports, LLC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below), the Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts to file under the Securities Act within 150 days after the Closing Date, a registration statement (the "Exchange Offer Registration Statement") relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt capital securities issued by the Company Issuer Trust and guaranteed by the GuarantorsCompany and underlying junior subordinated deferrable interest debentures of the Company, which debt securities capital securities, guarantee and Guarantees are substantially identical to debentures have the Securities same terms as the Capital Securities, the Guarantee and the related GuaranteesDebentures, respectively (and are entitled to the benefits of a trust indenture indentures which is substantially identical to the Indenture or is the Indenture and which has have been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and Act, do not contain restrictions on transfer or transfers and do not contain provisions for the additional interest and additional distributions contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Issuer Trust further agrees agree to use its commercially their reasonable best efforts to commence and complete the Exchange Offer promptly after the Exchange Offer Registration Statement becomes has become effective, . The Company and the Issuer Trust agree to hold the Exchange Offer open for the period at least 30 days (or longer if required by applicable law (including pursuant to any applicable interpretation by law) after the staff date notice of the Commission), but in any event for at least 10 business days, Exchange Offer has been mailed to the holders of the Capital Securities and the Debentures and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not validly withdrawn by the holder thereof on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed completed only if the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer for Securities are, upon receipt, transferable by each such holder without restriction imposed thereon by the Securities Act or the Exchange Act and without material restrictions imposed thereon by the blue sky or securities laws of a substantial majority of the States of the United States of America. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences and the Issuer Trust having exchanged the Exchange Securities for all outstanding Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Securities that have been validly tendered and not validly withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Issuer Trust agree (x) to include in the Exchange Registration Statement registration statement a prospectus for use in connection with any resales by any holder of Exchange Securities by a holder that is a broker-dealer, other than resales of Exchange Securities received by a broker-dealer pursuant to the Exchange Offer in exchange for Registrable Securities acquired by such broker-dealer directly from the Issuer Trust, and (y) to keep such the Exchange Offer Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of (i) either (a) the expiration of the 90th 180th day after the Exchange Offer has been completed or (b) in the event the Company and the Issuer Trust have at any time notified any broker-dealers pursuant to Section 3(f)(ii), the day beyond the 180th day after the Exchange Offer has been completed that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Issuer Trust give notice pursuant to Section 3(f)(ii)(F) to and including the date when broker-dealers receive an amended or supplemented prospectus necessary to permit resales of Exchange Securities or to and including the date on which the Company and the Issuer Trust give notice that the resale of Exchange Securities under the Exchange Offer Registration Statement may resume or (ii) such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required With respect to represent to the Company such registration statement, each broker-dealer that (i) any holds Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the an Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Registerable Securities that were not acquired as a result of market-making activities or other trading activities (other than Securities acquired by it directly from the Company or any shall have the benefit of its affiliates) the rights of indemnification and that it will deliver a prospectus contribution set forth in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsSection 6.
(b) If (i) on or prior to the time consummation of the Exchange Offer is consummated existing applicable law or Commission interpretations are changed such that the Exchange Securities or capital securities, related guarantee of the related Guarantees Company and underlying debentures of the Company to be received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under imposed by the Securities Act, (ii) the Exchange Offer has Registration Statement is not been completed declared effective within 360 180 days following of the Closing Date, or (iii) any Initial Purchaser so requests with respect the Company has received an opinion of counsel, rendered by a law firm having a recognized national tax practice, to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following effect that, as a result of the consummation of the Exchange Offer Offer, there is more than an insubstantial risk that (a) the Issuer Trust is, or will be, subject to United States federal income tax with respect to income received or accrued on the Debentures, (b) interest payable by the Company on the Debentures is not, or will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes, or (ivc) any holder (other than an Initial Purchaser) shall the Issuer Trust is, or will be, and shall notify the Company that such holder issubject to more than a de minimis amount of other taxes, prohibited by law duties or Commission policy from participating other governmental charges, then in the Exchange Offer addition to or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to the Company and the Issuer Trust shall file under the Securities Act as promptly as reasonably practicable, practicable a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filingthe "Shelf Registration"). The Administrative Trustees will promptly deliver to the holders of the Capital Securities, the “Shelf Registration” Property Trustee and such registration statementthe Delaware Trustee, or the “Shelf Registration Statement”Company will promptly deliver to the holders of the Debentures, if not the Issuer Trust, written notice that the Company and the Issuer Trust will be complying with the provisions of this Section 2(b). The Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 days after the date on which the obligation and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (i) either (x) the first third anniversary of the Effective Time Closing Date or such shorter period that will terminate when all (y) in the Registrable Securities covered by event the Shelf Registration Statement Company and the Issuer Trust have been sold pursuant to at any time suspended the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) use of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder prospectus contained in the Shelf Registration Statement or pursuant to use Section 3(c), the prospectus forming a part thereof for resales date beyond the third anniversary of the Closing Date that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Issuer Trust give notice of such suspension pursuant to Section 3(c) to and including the date when holders of Registrable Securities unless such holder is receive an Electing Holder, and (y) after the Effective Time of amended or supplemented prospectus necessary to permit resales as Registrable Securities under the Shelf Registration Statement, promptly upon or to and including the request of any holder date on which the Company and Issuer Trust give notice that the resale of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary may resume or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take such time as there are no longer any such action with respect to any such holders more than once every quarterRegistrable Securities outstanding. The Company and the Issuer Trust further agrees agree to supplement or make amendments to the Shelf Registration StatementRegistration, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees and the Issuer Trust agree to furnish to each Electing Holder the holders of the Registrable Securities copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The If either the Company or the Issuer Trust fails to comply with this Agreement or if the Exchange Offer Registration Statement or the Shelf Registration fails to become effective (any such event a "Registration Default"), then, as liquidated damages, registration default interest (the "Registration Default Interest") shall become payable in respect of the Debentures, and corresponding registration default Distributions (the Initial Purchasers agree "Registration Default Distributions"), shall become payable on the Trust Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration is filed with the Commission on or prior to the 180th day after the Closing Date or (B) notwithstanding that the holders of Registrable Securities will suffer damages if the Company and the Guarantors fail Issuer Trust have consummated or will consummate an Exchange Offer, the Company and the Issuer Trust are required to fulfill their obligations under file a Shelf Registration and such Shelf Registration is not filed on or prior to the date required by this Section 2 Agreement, then commencing on the day after either such required filing date, Registration Default Interest shall accrue on the principal amount of the Debentures, and that it would not be feasible to ascertain Registration Default Distributions shall accumulate on the extent Liquidation Amount of such damages with precision. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing DateTrust Securities, or each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement is declared effective by the Commission on or prior to the 30th day after the applicable required filing date or (B) notwithstanding that the Company and the Issuer Trust have consummated or will consummate an Exchange Offer, the Company and the Issuer are required to be filed under Section 2(b) hereof file a Shelf Registration and such Shelf Registration is not declared effective by the Commission on or before 90 days prior to the 30th day after the date such Shelf Registration was required to be filed, then commencing on the 31st day after the applicable required filing date, Registration Default Interest shall accrue on the principal amount of the Debentures, and Registration Default Distributions shall accumulate on the Liquidation Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(iii) if (A) the Issuer Trust and the Company have not exchanged Exchange Securities for all Securities validly tendered and not withdrawn, in accordance with the terms of the Exchange Offer on or prior to the 30th day after the date on which the obligation to file Exchange Offer Registration Statement was declared effective or (B) if applicable, the Shelf Registration Statement arises, or (iii) if any has been declared effective and such Shelf Registration Statement required by Section 2(b) hereof is filed and declared effectiveceases to be effective at any time prior to the third anniversary of the Closing Date (other than after such time as there are no longer any Registrable Securities), then Registration Default Interest shall accrue on the principal amount of Debentures, and during Registration Default Distributions shall accumulate on the period Liquidation Amount of the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effectiveTrust Securities, each at a rate of 0.25% per annum commencing on (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days 31st day after such effective date, in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability case of the Shelf Registration Statement (A) above, or (y) the day such Shelf Registration Statement shall cease ceases to be effective in the case of (other than by action B) above; provided, however, that neither the Registration Default Interest rate on the Debentures, nor the Registration Default Distributions rate on the Liquidation Amount of the Company pursuant to Trust Securities, shall exceed in the second paragraph aggregate 0.25% per annum; provided further, however, that (1) upon the filing of Section 2(b) hereof) without being replaced within 90 days by the Exchange Offer Registration Statement or a shelf registration statement that is filed and declared effective Shelf Registration (each such event referred to in clauses the case of clause (i) through (iiiabove), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to 2) upon the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days effectiveness of the Exchange Offer Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to Statement or a maximum Shelf Registration (in the case of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) above), or (iii3) will be deemed cured upon consummation the exchange of the Exchange Offer Securities for all securities validly tendered and not withdrawn (in the case of a clause (iii) (A) above), or upon the effectiveness of the Shelf Registration Statement required which had ceased to be filed due remain effective (in the case of clause (iii) (B) above), Registration Default Interest on the Debentures, and Registration Default Distributions on the Liquidation Amount of the Trust Securities as a result of such clauses (or the relevant subclauses thereof), as the case may be, shall cease to a failure to consummate the Exchange Offer within the required time periodaccrue or accumulate.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, incorporated therein by reference as of such time the applicable Effective Time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, incorporated therein by reference as of a time after such timeEffective Time.
(e) Notwithstanding any other provision of this Agreement, in the event that Debentures are distributed to holders of Capital Securities in liquidation of the Issuer Trust pursuant to the Trust Agreement (a) all references in this Section 2 and Section 3 to Securities, Registrable Securities and Exchange Securities shall not include the Capital Securities and Guarantee or Exchange Securities issued or to be issued in exchange therefor in the Exchange Offer, (ii) all requirements for action to be taken by the Issuer Trust in this Section 2 and Section 3 shall cease to apply and all requirements for action to be taken by the Company in this Section 2 and Section 3 shall apply to Debentures and Exchange Securities issued or to be issued in exchange therefor in the Exchange Offer.
Appears in 1 contract
Samples: Registration Rights Agreement (Us Bancorp Capital I)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below), the Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts to file under the Securities Act within 150 days after the Closing Date, a registration statement (the "Exchange Offer Registration Statement") relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt capital securities issued by the Company Issuer Trust and guaranteed by the GuarantorsCompany and underlying junior subordinated deferrable interest debentures of the Company, which debt securities capital securities, guarantee and Guarantees are substantially identical to debentures have the Securities same terms as the Capital Securities, the Guarantee and the related GuaranteesDebentures, respectively (and are entitled to the benefits of a trust indenture indentures which is substantially identical to the Indenture or is the Indenture and which has have been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and Act, do not contain restrictions on transfer or transfers and do not contain provisions for the additional interest and additional distributions contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Issuer Trust further agrees agree to use its commercially their reasonable best efforts to commence and complete the Exchange Offer promptly after the Exchange Offer Registration Statement becomes has become effective, hold the Exchange Offer open for the period at least 30 days (or longer if required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, law) and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed completed only if the Exchange Securities received by holders other than Restricted Holders in the Exchange Offer for Securities are, upon receipt, transferable by each such holder without restriction imposed thereon by the Securities Act or the Exchange Act and without material restrictions imposed thereon by the blue sky or securities laws of a substantial majority of the States of the United States of America. The Exchange Offer shall be deemed to have been completed upon the Company commences and the Issuer Trust having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Issuer Trust agree (x) to include in the Exchange Registration Statement registration statement a prospectus for use in connection with any resales by any holder of Exchange Securities by a holder that is a broker-dealer, other than resales of Exchange Securities received by a broker-dealer pursuant to the Exchange Offer in exchange for Registrable Securities acquired by such broker-dealer directly from the Issuer Trust, and (y) to keep such the Exchange Offer Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of (i) either (a) the expiration of the 90th 180th day after the Exchange Offer has been completed or (b) in the event the Company and the Issuer Trust have at any time notified any broker-dealers pursuant to Section 3(f)(ii)(F), the day beyond the 180th day after the Exchange Offer has been completed that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Issuer Trust give notice pursuant to Section 3(f)(ii)(F) to and including the date when broker-dealers receive an amended or supplemented prospectus necessary to permit resales of Exchange Securities or to and including the date on which the Company and the Issuer Trust give notice that the resale of Exchange Securities under the Exchange Offer Registration Statement may resume or (ii) such time as such broker-broker- dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on because of any change in law or prior in applicable interpretations by the staff of the Commission, the Company and the Issuer Trust are not permitted to the time effect the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities ActOffer, (ii) the Exchange Offer has Registration Statement is not been completed declared effective within 360 180 days following of the Closing Date, (iii) any the Initial Purchaser so requests (but only with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Capital Securities) within 60 days after the consummation of the Exchange Offer and with respect to any Capital Securities held by it the Initial Purchaser which are not freely transferable following consummation of the Exchange Offer or Offer, (iv) in the case of any holder, other than a Restricted Holder, that participates in the Exchange Offer, such holder 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 an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of any of the Company or the Issuer Trust within the meaning of the Securities Act Act), or (v) the Company has received an opinion of counsel, rendered by a law firm having a recognized national tax practice, to the effect that, as a result of the consummation of the Exchange Offer, there is more than an insubstantial risk that (x) the Issuer Trust would be subject to United States federal income tax with respect to income received or accrued on the Junior Subordinated Debentures or Exchange Debentures, (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, interest payable by the Company and on such Junior Subordinated Debentures or Exchange Debentures would not be deductible by the Guarantors shallCompany, in whole or in part, for United States federal income tax purposes, or (z) the Issuer Trust would be subject to more than a de minimis amount of other taxes, duties or other governmental charges, then in addition to or in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to the Company and the Issuer Trust shall file under the Securities Act as promptly as reasonably practicable, practicable a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filingthe "Shelf Registration"). The Administrative Trustees will promptly deliver to the holders of the Capital Securities, the “Shelf Registration” Property Trustee and such registration statementthe Delaware Trustee, or the “Shelf Registration Statement”Company will promptly deliver to the holders of the Debentures, if not the Issuer Trust, written notice that the Company and the Issuer Trust will be complying with the provisions of this Section 2(b). The Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 days after the date on which the obligation and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (i) either (x) the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all (y) in the Registrable Securities covered by event the Shelf Registration Statement Company and the Issuer Trust have been sold pursuant to at any time suspended the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) use of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder prospectus contained in the Shelf Registration Statement pursuant to Section 3(c), the date beyond the second anniversary of the Closing Date that reflects an additional period of days equal to the number of days during all of the periods from and including the dates the Company and the Issuer Trust give notice of such suspension pursuant to Section 3(c) to and including the date when holders of Registrable Securities receive an amended or supplemented prospectus necessary to use the prospectus forming a part thereof for permit resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of under the Shelf Registration Statement, promptly upon or to and including the request of any holder of date on which the Company and Issuer Trust give notice that the resale to Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary may resume or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take such time as there are no longer any such action with respect to any such holders more than once every quarterRegistrable Securities outstanding. The Company and the Issuer Trust further agrees agree to supplement or make amendments to the Shelf Registration StatementRegistration, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees and the Issuer Trust agree to furnish to each Electing Holder the holders of the Registrable Securities copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The If either the Company or the Issuer Trust fails to comply with this Agreement or if the Exchange Offer Registration Statement or the Shelf Registration fails to become effective (any such event a "Registration Default"), then, as liquidated damages, registration default interest (the "Registration Default Interest") shall become payable in respect of the Debentures, and corresponding registration default Distributions (the Initial Purchasers agree "Registration Default Distributions"), shall become payable on the Trust Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration is filed with the Commission on or prior to the 150th day after the Closing Date or (B) notwithstanding that the holders of Registrable Securities will suffer damages if the Company and the Guarantors fail Issuer Trust have consummated or will consummate an Exchange Offer, the Company and the Issuer Trust are required by this Agreement to fulfill their obligations under file a Shelf Registration and such Shelf Registration is not filed on or prior to the date required by this Section 2 Agreement, then commencing on the day after either such required filing date, Registration Default Interest shall accrue on the principal amount of the Debentures, and that it would not be feasible to ascertain Registration Default Distributions shall accumulate on the extent Liquidation Amount of such damages with precision. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing DateTrust Securities, or each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a Shelf Registration Statement is declared effective by the Commission on or prior to the 30th day after the applicable required filing date or (B) notwithstanding that the Company and the Issuer Trust have consummated or will consummate an Exchange Offer, the Company and the Issuer are required by this Agreement to be filed under Section 2(b) hereof file a Shelf Registration and such Shelf Registration is not declared effective by the Commission on or before 90 days prior to the 30th day after the date such Shelf Registration was required to be filed, then commencing on the 31st day after the applicable required filing date, Registration Default Interest shall accrue on the principal amount of the Debentures, and Registration Default Distributions shall accumulate on the Liquidation Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(iii) if (A) the Issuer Trust and the Company have not exchanged Exchange Securities for all Securities validly tendered and not withdrawn, in accordance with the terms of the Exchange Offer, on or prior to the 30th day after the date on which the obligation to file Exchange Offer Registration Statement was declared effective or (B) if applicable, the Shelf Registration Statement arises, or (iii) if any has been declared effective and such Shelf Registration Statement required by Section 2(b) hereof is filed and declared effectiveceases to be effective at any time prior to the second anniversary of the Closing Date (other than after such time as there are no longer any Registrable Securities), then Registration Default Interest shall accrue on the principal amount of Debentures, and during Registration Default Distributions shall accumulate on the period Liquidation Amount of the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effectiveTrust Securities, each at a rate of 0.25% per annum commencing on (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days 31st day after such effective date, in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability case of the Shelf Registration Statement (A) above, or (y) the day such Shelf Registration Statement shall cease ceases to be effective effective, in the case of (other than by action B) above; provided, however, that neither the Registration Default Interest rate on the Debentures, nor the Registration Default Distributions rate on the Liquidation Amount of the Company pursuant to Trust Securities, shall exceed in the second paragraph aggregate 0.25% per annum; provided further, however, that (1) upon the filing of Section 2(b) hereof) without being replaced within 90 days by the Exchange Offer Registration Statement or a shelf registration statement that is filed and declared effective Shelf Registration (each such event referred to in clauses the case of clause (i) through (iiiabove), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to 2) upon the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days effectiveness of the Exchange Offer Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to Statement or a maximum Shelf Registration (in the case of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or above), (iii3) will be deemed cured upon consummation the exchange of the Exchange Offer Securities for all securities validly tendered and not withdrawn (in the case of a clause (iii) (A) above), or upon the effectiveness of the Shelf Registration Statement required which had ceased to be filed due remain effective (in the case of clause (iii) (B) above), or (4) upon the termination of certain transfer restrictions on the Securities as a result of the application of Rule 144(k), Registration Default Interest on the Debentures and Registration Default Distributions on the Liquidation Amountsult of such clause (or the relevant subclause thereof), as the case may be, shall cease to a failure to consummate the Exchange Offer within the required time periodaccrue or accumulate.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, incorporated therein by reference as of such time the applicable Effective Time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, incorporated therein by reference as of a time after such timeEffective Time.
(e) Notwithstanding any other provision of this Agreement, in the event that Debentures are distributed to holders of Capital Securities in liquidation of the Issuer Trust pursuant to the Trust Agreement (a) all references in this Section 2 and Section 3 to Securities, Registrable Securities and Exchange Securities shall not include the Capital Securities and Guarantee or Capital Securities and Guarantee issued or to be issued in exchange therefor in the Exchange Offer, (ii) all requirements for action to be taken by the Issuer Trust in this Section 2 and Section 3 shall cease to apply and all requirements for action to be taken by the Company in this Section 2 and Section 3 shall apply to Debentures and Debentures issued or to be issued in exchange therefor in the Exchange Offer.
(f) Notwithstanding any other provision of this Agreement, no holder of Registrable Securities who does not comply with the provisions of Section 3(d), if applicable, shall be entitled to receive Registration Default Interest or Registration Default Distributions, as the case may be, unless and until such holder complies with the provisions of such section, if applicable.
Appears in 1 contract
Samples: Registration Rights Agreement (First Hawaiian Capital I)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act no later than 180 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its all commercially reasonable efforts to commence the Exchange Offer promptly issue, on or prior to 45 days after the Exchange Registration Statement becomes effectivewas declared effective by the Commission, hold or longer if required by the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission)Act, but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated not permitted by applicable law or Commission policy; or (ii) prior to the consummation of the Exchange Offer, existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, be transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, ; or (iii) prior to the 20th business day following the consummation of the Exchange Offer, any Initial Purchaser so requests with respect to holder notifies the Company in writing that it holds any Registrable Securities not eligible that have, or that are reasonably likely to be exchanged for Exchange Securities determined to have, the status of an unsold allotment in the initial distribution of the Registrable Securities, or any holder notifies the Company in writing that it believes that it is not entitled to participate in the Exchange Offer and held by it following consummation such holder has not received a written opinion of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify counsel to the Company to the effect that such holder is, prohibited by law or Commission policy from participating is legally permitted to participate in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Offer; the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 90 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 180 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all commercially reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Notwithstanding anything herein to the contrary, the Company may suspend the use of any prospectus for a period not to exceed 45 days in any twelve-month period if (i) such action is required by applicable law; or (ii) due to the existence of material non-public information, disclosure of such material non-public information would be required to make the statements contained in the applicable registration statement not misleading (including for the avoidance of doubt, the pendency of an acquisition, disposition or public or private offering by the Company), and the Company has a bona fide business purpose for preserving as confidential such material non-public information to avoid premature public disclosure of a pending corporate transaction, including pending acquisitions or divestitures of assets, mergers and combinations and similar events; provided that (x) the Company promptly thereafter complies with the requirements of Section 3(c) and/or 3(d), as applicable, and (y) the Exchange Offer Registration Period and/or the Shelf Registration Period, as applicable, shall be extended by the number of days during which such Exchange Offer Registration Statement and/or Shelf Registration Statement was not effective or usable pursuant to the foregoing provisions.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Simmons Co)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act on or prior to 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Exchange Securities will be issued as evidence of the same continuing indebtedness of the Company and will not constitute the Guarantors agree creation of new indebtedness. The Company agrees to use their respective its best efforts to cause the Exchange Registration Statement to become effective under the Securities Act on or prior to 180 days after the Closing Date and the Company further agrees to use its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Dateas promptly as reasonably possible. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly on or prior to 45 business days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Transfer Restricted Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities received by holders other than Restricted Holders in the Exchange Offer for Transfer Restricted Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and without material restrictions under blue sky or securities laws of a substantial majority of the States of the United States. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Transfer Restricted Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Transfer Restricted Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer that has acquired such Transfer Restricted Securities for its own account as a result of market-making activities or other trading activities and not directly from the Company, and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Transfer Restricted Securities, other than Transfer Restricted Securities acquired from the Company. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Transfer Restricted Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, applicable time period set forth in section 2(a) hereof or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableon or prior to 60 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Transfer Restricted Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially reasonable its best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 on or prior to 150 days after the date on which the such obligation to file arises and to keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the Registrable time as there are no longer any Transfer Restricted Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Transfer Restricted Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Transfer Restricted Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Transfer Restricted Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or prior to the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or prior to the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease effective but thereafter ceases to be effective (other than by action or usable in connection with resales of Transfer Restricted Securities during the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective time periods specified herein (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base InterestInterest shall accrue, shall accrue on Registrable with respect to the first 90-day period immediately following the occurrence of the first Registration Default in an amount equal to US$.05 per week per US$1,000 principal amount of Securities for held by such Holder. The amount of the Special Interest will increase by an additional US$.05 per week per US$1,000 principal amount of Securities with respect to each subsequent 90 day Registration Default Period (but only with respect until all Registration Defaults have been cured, up to a maximum amount of Special Interest for all Registration Defaults of US$.50 per week per US$1,000 principal amount of Securities. The Company shall not be required to pay Special Interest for more than one Registration Default at any particular given time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer The Company shall pay all Special Interest, if any, in the case of a Shelf Registration Statement required to be filed due to a failure to consummate manner and on the Exchange Offer within dates specified in the required time periodIndenture.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages use its best efforts to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Ainsworth Lumber Co LTD)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its all commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 225 days after the Exchange Registration Statement becomes effectiveissuance of the Securities, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange EXECUTION COPY Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 60 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the time such obligation to file arises and to keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; providedoutstanding, howeverPROVIDED, HOWEVER, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; providedStatement, howeverPROVIDED, HOWEVER, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) prior to the Company shall not be required to take any use of such action with respect to any prospectus for such holders more than once every quarterpurpose. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 225 days after the Closing Date, issuance of the Notes or (iiiv) if a Shelf any Exchange Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, special subject to the provisions of Section 9(b), additional interest (“Special "Additional Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for during the first 90-day period immediately following the occurrence of the first Registration Default Period (but only in an amount equal to US$.05 per week per US$1,000 principal amount of notes held by such Holder. The amount of the Additional Interest will increase by an additional US$.05 per week per US$1,000 principal amount of notes with respect to one Registration Default at any particular time) each subsequent 90-day period until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day periodcured, up to a maximum amount of 0.50% regardless of the number of Additional Interest for all Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual US$.25 per week per US$1,000 principal amount of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodnotes.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(ec) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fd) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Compton Petroleum Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Additional Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 210 days after the Exchange Registration Statement becomes effectiveClosing Date, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, not less than 20 Business Days and not more than 30 Business Days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is not less than 20 Business Days and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and (e) hereof. The Company agrees that, prior to effectiveness of the Exchange Offer Registration Statement, it will provide a supplemental letter to the Commission (A) stating that the Company is conducting the Registered Exchange Offer in reliance on the position of the Commission in EXXON CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988), MORGAN STANLEY AND CO., INC. (pub. avail. June 5, 1991); and (B) xxcxxxxxx a representation that the Company has not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that, to the Company's knowledge, each holder participating in the Registered Exchange Offer shall be required to represent to is acquiring the Company that (i) any Exchange New Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder business and has no arrangements arrangement or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange New Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 210 days after the date on which the obligation Closing Date and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, Commission if such action occurs following amendment or supplement is not made available on the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveCommission's EDGAR System.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company xxx not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 45 Business Days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, special interest subject to the provisions of Section 9(b), Additional Interest (“Special "Additional Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of until all Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodbeen cured.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) During any 365-day period, the Company may suspend the use of the Prospectus for up to four periods not to exceed 45 consecutive days (other than the consecutive 45-day period immediately prior to the maturity of the Securities) or an aggregate of 90 days in any 12-month period if the Board of Directors of the Company shall have determined in good faith that because of valid business reasons (not including avoidance of the Company's obligations hereunder), including the acquisition or divestiture of assets, pending corporate developments and similar events, it is in the best interests of the Company to suspend such use, and prior to suspending such use the Company provides the holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Office Depot Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 60 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantor further agrees agree to use its commercially reasonable their respective best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences and the Guarantor having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company and the Guarantor having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; providedoutstanding, howeverPROVIDED, HOWEVER, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; providedStatement, howeverPROVIDED, HOWEVER, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company and the Guarantor and in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Guarantor further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees and the Guarantor agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors Guarantor shall take all actions reasonably necessary or advisable to be taken by it such party to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Zions Financial Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under with the Securities Act Commission, no later than 300 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 365 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and the Guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers are no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any the resale of Registrable Securities. With respect to such Exchange Securities Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Subsections 6(a), (c), (d) and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If If, following the date on which the Exchange Registration Statement has been declared effective, (i) on or after the 365th day after the Closing Date but prior to the time the Exchange Offer is consummated completed, existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, Act or (ii) any holder of Registrable Securities notifies the Exchange Offer has not been completed within 360 days Company prior to the 20th Business Day following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 60 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises; provided, that if, prior to the time the Shelf Registration Statement filing obligation arises the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors may file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) Statement, or extend the time period in which it is required to file the Shelf Registration Statement, for up to an aggregate of 60 consecutive days and up to 75 days in the aggregate, in each case in any consecutive twelve12-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer“Suspension Period”); provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date (the “Effectiveness Target Date”) on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (ii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or Effectiveness Target Date relating to the Exchange Offer (ii) if a Shelf Registration Statement the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement during the effectiveness period specified in Section 2(a) or 2(b), as applicable, (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodmay exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall use commercially reasonable efforts to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (1295728 Alberta ULC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, within 210 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are guarantees shall be substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they shall have been registered pursuant to an effective registration statement under the Securities Act and do shall not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the Commission under the Exchange Act (or a longer period if required by applicable law the federal securities laws) and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agree, that upon request, they will (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed the Company determines, upon advice of outside counsel, that existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder resales, (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning or (D) it is an affiliate of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 210 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 270 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) for up to an aggregate of 60 which shall not exceed 45 days in any consecutive three-month period or 90 days in any twelve-month period (a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Shelf Registration Statement on or before the date on which such Shelf Registration Statement is required to be filed pursuant to Section 2(b), or (ii) the Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional or amended registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuingDefault Period. Following the cure of all Registration Defaults, the The accrual of Special Interest will cease. A shall be the sole and exclusive remedy available to the holders of Registrable Securities for any Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Clear Channel Outdoor Holdings, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Guarantor agree to use their respective commercially reasonable efforts efforts, no later than the 270th day following the Closing Date to (i) file under the Securities Act Act, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to , (ii) cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 days after and (iii) cause the Closing DateExchange Offer to be completed. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Offer Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period at least 20 Business Days (or longer if required by applicable law law) after the date notice of the Exchange Offer is mailed to the holders of the Registrable Securities in accordance with Regulation 14E promulgated by the Commission under the Exchange Act and (including iii) issue on or prior to 30 Business Days (or longer if required by the federal securities laws) after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities in exchange for the Registrable Securities that have been properly tendered and not withdrawn promptly following the expiration of the Exchange Offer. The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company having exchanged, pursuant to any applicable interpretation by the staff of the Commission)Exchange Offer, but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to before the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will which shall be entitled to close the Exchange Offer 30 business days after on a date that is at least 20 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has is not been completed within 360 days on or before the 270th day following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or Offer, (iv) any holder (other than an Initial Purchaser) shall be, and shall notify notifies the Company prior to the 20th Business Day following the completion of the Exchange Offer that such holder is, (A) it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within or, (v) in the meaning case of any Initial Purchaser that participates in the Exchange Offer or otherwise acquires Exchange Securities under this Agreement, such Initial Purchaser does not receive freely tradeable Exchange Securities on the date of the exchange, it being understood that (A) the requirement that an Initial Purchaser deliver the prospectus contained in the Exchange Offer Registration Statement containing the information required by Item 507 or 508 of Regulation S-K under the Securities Act or in connection with sales of Exchange Securities shall result in such new securities being not “freely tradeable” and (yB) due to such holder’s inability to make the representations set forth requirement that a participating broker-dealer deliver the prospectus contained in the second paragraph Exchange Offer Registration Statement in connection with sales of Section 2(a) hereofExchange Securities shall not result in such Exchange Securities being not “freely tradeable”; in the case of each of clauses (i), (ii), (iii), (iv) and any such holder so requests, (v) then the Company and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses (iii), (iv) and (iv), v) in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to promptly as practicable file under the Securities Act as promptly as reasonably practicableAct, and in no event later than 60 days after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors Guarantor agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which filing of such Shelf Registration filing obligation arises provided, that if at any time the obligation Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantor shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantor agree to use commercially reasonable efforts to keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no Effectiveness Period”). No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantor agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) Statement, or extend the time period in which it is required to file the Shelf Registration Statement, for up to an aggregate a reasonable period of 60 days time but not in any consecutive twelve-month period if excess of (i) such action is required 30 consecutive days or more than three (3) times during any calendar year so long as all of the Securities cannot be sold pursuant to Rule 144 without limitation by applicable law or non-affiliates of the Company under clause (b) of Rule 144 and (ii) such action is taken by the Company in good faith and for valid business reasons 60 consecutive days or more than three (not including avoidance 3) times during any calendar year once all of the Company’s obligations hereunder) as determined Securities can be sold pursuant to Rule 144 without limitation by the board of directors non-affiliates of the Company or an authorized committee thereof, including under clause (b) of Rule 144 (a “Suspension Period”) if the acquisition or divestiture Board of assets, or (y) with respect to Directors of the Company determines that there is a valid business purpose for suspension of the Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(b), (ii) the Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective completed on or before 90 days after the date on which 270th day following the obligation to file the Shelf Registration Statement arises, Closing Date or (iii) if any Exchange Offer Registration Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period; provided, however, that upon consummation the exchange of the Exchange Offer in Securities for Securities tendered, or upon the case effectiveness of a the applicable Exchange Registration Statement or Shelf Registration Statement required which either failed to be, or had ceased to remain, effective, as applicable, Special Interest on the Securities in respect of which such Registration Default relates shall cease to accrue; provided, further, that no Special Interest shall accrue on the Securities following the second anniversary of the Closing Date. Notwithstanding any other provisions of this paragraph, the Company shall not be filed due obligated to pay Special Interest provided in this paragraph during a Suspension Period permitted by Section 2(b) hereof. Special Interest shall accrue and be payable only with respect to a failure to consummate single Registration Default at any given time, notwithstanding the Exchange Offer within the required time periodfact that multiple Registration Defaults may exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall cause the Guarantor to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Offer Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (AerCap Aviation Solutions B.V.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 60 days after the Closing Date, a registration statement (the "Exchange Registration Statement") relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal liquidation amount of debt capital securities (the "Exchange Securities") issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are an issuer trust substantially identical to the Issuer Trust (the "Exchange Issuer Trust"), which Exchange Securities and the related Guarantees, respectively shall be (and are entitled to the benefits of a trust indenture which is i) substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act)Securities, except that they such Exchange Securities shall have been registered pursuant to an effective registration statement under the Securities Act and do shall not contain restrictions on terms with respect to Special Distributions or transfer or provisions for restrictions, (ii) shall be issued pursuant to a trust agreement (the additional interest contemplated in Section 2(c"Exchange Trust Agreement") below or that (except with respect to the liquidated damages provided in Section 2(dforegoing matters) below is substantially identical to the Trust Agreement and shall be qualified under the Trust Indenture Act, and (such new debt securities hereinafter called “iii) shall be entitled to a guarantee (the "Exchange Securities”)Guarantee Agreement") of the Company substantially identical to the Guarantee Agreement, which Exchange Guarantee Agreement shall be qualified under the Trust Indenture Act. The Company shall issue to the Exchange Issuer Trust, and the Guarantors agree Exchange Issuer Trust shall hold, junior subordinated debentures of the Company (the "Exchange Junior Subordinated Debentures") that are substantially identical to the Junior Subordinated Debentures, and are entitled to the benefits of an indenture (the "Exchange Indenture") that is either the Indenture or is substantially identical to the Indenture and that has been qualified under the Trust Indenture Act. The Company agrees to use their respective commercially reasonable its best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will shall be registered under the Securities Act on the appropriate form and will shall comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 35 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the cause to be issued Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the Company commences Exchange Securities received by holders other than Restricted Holders in the Exchange Offer for Securities are, upon receipt, transferable by each such holder without need for further compliance with Section 5 of the Securities Act and the Exchange Act (except for the requirement to deliver a prospectus included in the Exchange Registration Statement applicable to resales by broker-dealers of Exchange Securities received by such broker-dealer pursuant to the Exchange Offer in exchange for Securities other than those acquired by the broker-dealer directly from the Issuer Trust), and without material restrictions under the Blue Sky or securities laws of a substantial majority of the States of the United States of America. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company's having exchanged (or caused the exchange of) the Exchange Securities for all outstanding Securities pursuant to the Exchange Offer and (ii) the Company's having exchanged (or caused the exchange of), pursuant to the Exchange Offer, Exchange Securities for all Securities that have been validly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in connection with any resales by any holder of Exchange Securities that is a broker-dealer of Exchange Securities received by such broker-dealer in the Exchange Offer in exchange for Securities not acquired by such broker-dealer directly from the Issuer Trust, and (y) to keep such the Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable such Exchange Securities. Each holder participating in the With respect to such Exchange Offer shall be required to represent to the Company Registration Statement, each broker-dealer that (i) any holds Exchange Securities received by such holder will be acquired broker-dealer in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were not acquired as a result of market-making activities or other trading activities (other than Securities acquired by it directly from the Company or any Issuer Trust shall have the benefit of its affiliatesthe rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed either (A) existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under need for further compliance with Section 5 of the Securities Act, Act (ii) except for the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect requirement to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering deliver a prospectus and the prospectus contained included in the Exchange Registration Statement is not available for such applicable to resales by broker-dealers of Exchange Securities received by such holder broker-dealer in the Exchange Offer in exchange for Securities not acquired by such broker-dealer directly from the Issuer Trust), or (other than B) the Company or the Issuer Trust has received an opinion of counsel experienced in either case (x) due solely such matters to the status of such holder effect that, as an affiliate a result of the Company within the meaning consummation of the Securities Act Exchange Offer, there is more than an insubstantial risk that (a) the Exchange Issuer Trust would be subject to United States federal income tax with respect to income received or accrued on the Exchange Junior Subordinated Debentures, (b) interest payable by the Company on the Exchange Junior Subordinated Debentures would not be deductible by the Company, in whole or in part, for United States federal income tax purposes, or (yc) due the Exchange Issuer Trust would be subject to such holder’s inability to make the representations set forth in the second paragraph more than a de minimis amount of Section 2(a) hereof) and any such holder so requestsother taxes, the Company and the Guarantors shallduties or other governmental charges, then in lieu of (or, in the case of clauses (iii) and (iv), in addition to) Company's conducting the Exchange Offer contemplated by Section 2(a), the Company and the Issuer Trust shall use their respective commercially reasonable best efforts to file cause to be filed under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises and 60 days after the Closing Date, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors Issuer Trust agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement continuously effective in order to remain effective permit the prospectus forming a part thereof to be usable by holders for resales of Registrable Securities for a period ending on the earlier of the first third anniversary of the Effective Time or date 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 is filed or such time as there are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; no longer any Registrable Securities outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (yii) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (yii) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Issuer Trust further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Company and the Issuer Trust for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for relating to shelf registration, and the Company agrees and the Issuer Trust agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding .
(c) If (i) the foregoing, the Company may suspend the availability of any Exchange Registration Statement or Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) has not been filed on or before the date on which such action registration statement is required by applicable law to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such action is taken Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Company in good faith and for valid business reasons (not including avoidance of Commission on or before the Company’s obligations hereunderdate on which such registration statement is required to become or be declared effective pursuant to Section 2(a) as determined by the board of directors of the Company or an authorized committee thereof2(b), including the acquisition or divestiture of assetsrespectively, or (yiii) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated completed within 360 35 days after the Closing Dateinitial effective date of the Exchange Registration Statement (if the Exchange Offer is then required to be made), or (iiiv) if a Shelf any Exchange Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”"), then, as liquidated damages for such Registration Default, special subject to the provisions of Section 9(b), additional interest (“the "Special Interest”)") shall accrue in respect of the Junior Subordinated Debentures, as provided therein, and additional distributions (the "Special Distributions") shall accumulate in respect of the Trust Securities, as provided in the Trust Agreement, in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured each case at a per annum rate of 0.25% applicable to the principal amount of the Junior Subordinated Debentures or the liquidation amount of the Trust Securities, as the case may be, for the first 90 days of period from and including the date on which such Registration Default Period, occurs to but excluding the date on which rate such Registration Default ceases to exist. Such Special Interest and Special Distributions shall increase by an additional 0.25% during each subsequent 90be calculated on the basis of a 365-day periodor 366-day year, up to a maximum of 0.50% regardless of as the case may be, and the number of Registration Defaults that days elapsed during the relavent period and shall have occurred be payable semi-annually in arrears on each Interest Payment Date (as defined in the Indenture) or Distribution Date (as defined in the Trust Agreement), as the case may be, together with (and be continuingin the same manner as) the interest and Distributions otherwise payable in respect of the Junior Subordinated Debentures or the Trust Securities, as the case may be. Following If the cure of all Registration Defaults, the accrual of Company elects to commence an Extension Period at any time when such Special Interest will cease. A Registration Default under clause (ii) or (iii) will and Special Distributions are payable, such Special Interest and Special Distributions shall be deemed cured upon consummation deferred as and to the extent that the interest and Distributions otherwise payable in respect of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodJunior Subordinated Debentures and Trust Securities are deferred.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take, and shall cause the Issuer Trust or Exchange Issuer Trust, as the case may be, to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take take, all reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all reasonable actions necessary or desirable to register the Guarantees Guarantee Agreement, the Exchange Guarantee Agreement, the Junior Subordinated Debentures and the Exchange Junior Subordinated Debentures, as may be required under the Securities Act, under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-post- effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Colonial Bancgroup Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuers and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuers and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuers and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing DateAct. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuers further agrees agree to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with the period required by applicable law (including pursuant to any applicable interpretation tender offer rules and regulations promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the Company commences Exchange Securities received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Issuers having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 business days after Offer, which shall be on a date that is at least 20 and not more than 35 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuers and Guarantors shall use commercially reasonable efforts to complete the Exchange Offer not later than 400 days following the Closing Date (or if such 400th day is not a Business Day, the next succeeding Business Day). The Issuers and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to use all commercially reasonable efforts to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (iic), (d) at and (e). Upon the time of the commencement completion of the Exchange Offer such holder has in accordance with this Section 2(a), the Issuers shall have no arrangements or understanding with any person further obligation to participate in the distribution of the register Registrable Securities or the Exchange Securities within the meaning of the Securities Act, (other than those as to which clause (iii) of Section 2(b) hereof applies). For each Security surrendered to the Issuers pursuant to the Exchange Offer, the holder who surrendered such holder is not Security will receive an “affiliate,” as defined in Rule 405 Exchange Security having a principal amount equal to that of the Securities Act, surrendered Security. Interest on each Exchange Security will accrue (a) from the later of (i) the Company, last interest payment date on which interest was paid on the Security surrendered in exchange therefor or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (ivii) if the Security is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such holder is not a broker-dealer, that it is not engaged in, exchange and does not intend as to engage inwhich interest will be paid, the distribution date of the Exchange Securities, such interest payment date or (vb) if no interest has been paid on such holder is a broker-dealernote, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsClosing Date.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following on or prior to the 400th day after the Closing DateDate (or if such 400th day is not a Business Day, the next succeeding Business Day) or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuers prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Issuers or an affiliate of the Company within Issuers, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company Issuers and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file as promptly as practicable under the Securities Act as promptly as reasonably practicableafter the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuers and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than (1) in the case of any Shelf Registration Statement required by clause (i) of this Section 2(b), on or prior to the 400th day after the Closing Date (or if such 400th day is not a Business Day, the next succeeding Business Day), and (2) in the case of any Shelf Registration Statement required by clauses (ii) or (iii) of this Section 2(b), no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises filing obligation arises; provided, that if at any time each of the Issuer and Finance Co is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuers and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuers and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Issuers and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuers in accordance with Section 3(d)(iii) hereof and (ii) ). Notwithstanding anything to the Company shall not be contrary in this Section 2(b), upon notice to the Electing Holders, the Issuers may suspend the use or the effectiveness of such Shelf Registration Statement, or extend the time period in which it is required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to file the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 consecutive days and up to 120 days in the aggregate, in each case in any consecutive twelve12-month period (a “Suspension Period”) if (i) such action the Board of Directors of the Issuers determine that there is required by applicable law or (ii) such action is taken by the Company in good faith and for a valid business reasons (not including avoidance purpose for suspension of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company Issuers shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under pursuant to Section 2(b) hereof is has not become effective or been declared effective by the Commission on or before 90 days after the date on which such registration statement is required to become or be declared effective pursuant to Section 2(b), (ii) the obligation Exchange Offer has not been completed on or prior to file the Shelf Registration Statement arises400th day after the Closing Date (or if such 400th day is not a Business Day, the next succeeding Business Day) or (iii) if (A) at any time during the Resale Period, the Exchange Registration Statement shall either be withdrawn by the Issuers or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such registration statement or (B) any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuers or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A cease to accrue and the interest rate on the Registrable Securities will revert to the Base Rate; provided, however, that, if after the date such Special Interest ceases to accrue, a different Registration Default under clause (ii) occurs, Special Interest may again commence accruing pursuant to the foregoing provisions. All accrued Special Interest shall be payable by the Issuers and the Guarantors on the next scheduled interest payment date to The Depository Trust Company or (iii) its nominee by wire transfer of immediately available funds or by federal funds check and to holders of Securities by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. All obligations of the Issuers and the Guarantors set forth in this Section that are outstanding with respect to any Registrable Security at the time such security ceases to be a Registrable Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full; provided, however that it is understood that no additional obligations pursuant to the preceding paragraph will be deemed cured upon consummation of incurred by the Issuers and the Guarantors with respect to any security after the time such security ceases to be a Registrable Security. Anything herein to the contrary notwithstanding, no holder who (x) was eligible to exchange such holder’s outstanding Registrable Securities at the time that the Exchange Offer in the case of a Shelf Registration Statement required was pending and consummated and (y) failed to be filed due validly tender such securities for exchange pursuant to a failure to consummate the Exchange Offer within shall be entitled to receive any Special Interest that would otherwise accrue subsequent to the required time perioddate the Exchange Offer is consummated pursuant to this Section 2(c).
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer The Issuers shall take, and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Northern Tier Energy LLC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to Issuer agrees to:
(1) file under the Securities Act Act, no later than June 30, 2004, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities Notes (other than Exchange Notes) for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsIssuer, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively Notes (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below below, restrictions on transfer or the liquidated damages provided in Section 2(d) below restrictive legends (such new debt securities hereinafter called “Exchange SecuritiesNotes”). The Company and the Guarantors agree to ;
(2) use their respective commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 90 days after the Closing Datedate on which it is first filed with the Commission. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to ;
(3) use its commercially reasonable best efforts to (A) commence the Exchange Offer promptly and complete the Exchange Offer no later than 60 days after the Exchange Offer Registration Statement becomes has become effective, (B) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 calendar days and exchange the (C) issue Exchange Securities Notes for all Registrable Securities Notes that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences Exchange Notes received by holders other than Restricted Holders in the Exchange Offer for Registrable Notes are, 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 included in the Exchange Offer Registration Statement applicable to resales by any broker-dealer of Exchange Notes received by such broker-dealer pursuant to the Exchange Offer in exchange for Registrable Notes), and without material restrictions under the blue sky or securities laws of a substantial majority of the States of the United States of America. Subject to the preceding sentence, the Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Notes for all outstanding Registrable Notes (other than those held by Restricted Holders) pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Notes for all Registrable Notes that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business calendar days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree Issuer agrees (x) to include in the Exchange Offer Registration Statement a prospectus for use in connection with any resales by any holder of Exchange Securities that is Notes by a broker-dealer, other than resales of Notes acquired by the broker-dealer directly from the Issuer, and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities Notes are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable SecuritiesNotes. Each holder participating in the Exchange Offer shall be broker-dealer required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale resales of Exchange Notes agrees that, in the event the amount of Exchange Notes that are beneficially owned by such broker-dealer and are registered pursuant to the Exchange Offer Registration Statement is reduced due to a sale of such Exchange Securities Notes under such Exchange Offer Registration Statement, such broker-dealer shall deliver to the Issuer and the Trustee, promptly after such a sale, a notice of transfer substantially similar to the Notice of Transfer. With respect to such Exchange Offer Registration Statement, each broker-dealer that holds Exchange Notes received in an Exchange Offer in exchange for Registrable Notes shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) If, on or prior to the time date of consummation of the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees Notes received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities Notes are not or would not be, upon receipt, transferable by each such holder without restriction under need for further compliance with Section 5 of the Securities Act, Act (ii) except for the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect requirement to Registrable Securities not eligible to be exchanged for Exchange Securities deliver a prospectus included in the Exchange Offer and held Registration Statement applicable to resales by it following consummation a broker-dealer of Exchange Notes received by such broker-dealer pursuant to the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available exchange for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shallRegistrable Notes), in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to ) the Issuer shall file under the Securities Act as promptly as reasonably practicableby June 30, 2004, or if such change in Commission interpretations occurs after June 30, 2004, no later than 20 calendar days after such change, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Notes, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filingregistration, the “Shelf Resale Registration” and such registration statement, the “Shelf Resale Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; providedIn addition, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or event that, prior to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that , the Company Initial Purchasers shall promptly notify not have resold all of the Electing Holders when Notes initially purchased by them from the Shelf Registration Statement may once again be used or is effective.
(c) The Company Issuer pursuant to the Purchase Agreement and the Initial Purchasers agree that shall so request, the holders of Registrable Issuer shall file under the Securities will suffer damages Act, by June 30, 2004 or, if the Company and the Guarantors fail to fulfill their obligations under this Section 2 and that it would not be feasible to ascertain the extent of request for such damages with precision. In the event that (i) Exchange Offer has not been consummated within 360 a filing is made after June 30, 2004, no later than 20 calendar days after the Closing Daterequest is made, or (ii) if a Shelf Resale Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or covering such unsold Registrable Notes. (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in In the case of a Shelf any Resale Registration Statement required to be filed due to a failure to consummate only by the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final second sentence of the first paragraph of this Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements2(b), the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.references herein
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Telefonos De Mexico S a De C V)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act promptly, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Note Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Liquidated Damages contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 promptly, but no later than 180 days after the Closing Date, and will keep the Exchange Offer Registration Statement effective until the consummation of the Exchange Offer. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence Unless the Exchange Offer promptly would not be permitted by applicable law or Commission policy, the Company and the Guarantors further agree to use all reasonable best efforts to
(i) commence and complete the Exchange Offer promptly, but no later than 45 days after the date on which the Exchange Offer Registration Statement becomes has become effective, (ii) hold the Exchange Offer open for the period required by applicable law not less than 30 days and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is not less than 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to use their respective reasonable best efforts to keep such Exchange Offer Registration Statement effective for a period (of time as such Persons must comply with such requirements in order to resell the “Resale Period”) Exchange Securities beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-broker dealers no longer own any Registrable SecuritiesSecurities (the “Applicable Period”). Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed (A) existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not in general be, upon receipt, transferable by each such holder holders thereof without restriction restrictions under the Securities ActAct or (B) the interests of the holders, taken as a whole, would be materially adversely affected by the consummation of the Exchange offer; (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, ; or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableAct, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to file the Shelf Registration Statement with the Commission as soon as practicable, but no later than 30 days after the time that its obligation to file arises. The Company and the Guarantors agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 under the Securities Act no later than 60 days after the date on which the obligation to file such Shelf Registration Statement arises is filed. The Company and the Guarantors agree to use their respective commercially reasonable best efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when time as all the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or there are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rule 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Offer Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 45 Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced succeeded within 90 30 days by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest subject to the provisions of Section 9(b), liquidated damages (“Special InterestLiquidated Damages”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect then outstanding at an amount per week per $1,000 principal amount of Registrable Securities equal to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% $0.05 for the first 90 days of the Registration Default Period, which rate shall increase increasing by an additional 0.25% during $0.05 per week per $1,000 principal amount of Registrable Securities with respect to each subsequent 90-day period, up to a maximum of 0.50% regardless $0.25 per week per $1,000 principal amount of Registrable Securities. All accrued Liquidated Damages shall be paid by the number Company and the Guarantors on each interest payment date to holders of Registration Defaults that shall have occurred and be continuing. Following record for the cure payment of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodinterest.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Note Guarantees under the registration statement contemplated in Section 2(a) any Exchange Offer Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Mountaineer Park Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 180 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and Securities, including without limitation, the related Guarantees, respectively if any (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within as soon as practicable, but no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and the related Guarantees, if any, received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed, existing Commission interpretations are changed such that the Exchange Securities or debt securities and the related Guarantees Guarantees, if any, received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 315 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of the thirtieth (30th) day after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take and shall cause the Guarantors, if any, to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantees, if any, under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Bio Rad Laboratories Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 230 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and Securities, including without limitation, the related Guarantees, respectively if any (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 320 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and the related Guarantees, if any, received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such SFDOCS01/270919.6 Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed, existing Commission interpretations are changed such that the Exchange Securities or debt securities and the related Guarantees Guarantees, if any, received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 365 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of the thirtieth (30th) day after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), SFDOCS01/270919.6 5 respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period or becomes effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages take and shall cause the Guarantors, if any, to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantees, if any, under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Bio Rad Laboratories Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its all commercially reasonable efforts to commence consummate the Exchange Offer promptly no later than 30 business days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period at least 30 days, or longer, if required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business daysfederal securities laws, and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on the Company and the Guarantors are not (A) required to file the Exchange Offer Registration Statement or prior (B) permitted to consummate the time Exchange Offer because the Exchange Offer is consummated existing not permitted by applicable law or Commission interpretations are changed such that the Exchange Securities policy; or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following consummation of the Exchange Offer or that (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, was prohibited by law or Commission policy from participating in the Exchange Offer or Offer, (B) such holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to the status of such holder as is a broker-dealer and holds Registrable Securities acquired directly from the Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (ivii), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective all commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 30 days after the time such obligation to file arises (but no earlier than 90 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become be declared effective within by the Commission on or prior to 90 days after such filing obligation arises (but no earlier than 180 days following the date on which the obligation Closing Date) and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall (A) relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required or the Guarantors to take any such action with respect to any such holders file more than once every quarterone post-effective amendment to the Shelf Registration Statement in any 45-day period. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. .
(c) Notwithstanding the foregoing, the Company may suspend issue a notice that the availability of any Shelf Registration Statement (x) is no longer effective or the prospectus included therein is no longer usable for up offers and sales of Registrable Securities covered by the Shelf Registration Statement for a period not to an aggregate of exceed 60 days in the aggregate in any consecutive twelve-month period (a “suspension period”) if (i) such action is required by applicable law law; or (ii) due to the existence of material non-public information, disclosure of such action is taken material non-public information would be required to make the statements contained in the applicable registration statement not misleading (including for the avoidance of doubt, the pendency of an acquisition, disposition or public or private offering by the Company), and the Company in good faith and has a bona fide business purpose for valid business reasons preserving as confidential such material non-public information (not including other than avoidance of the Company’s its obligations hereunder) as determined by the board of directors of ; provided that (x) the Company or an authorized committee thereof, including promptly thereafter complies with the acquisition or divestiture requirements of assets, or Section 3(d) hereof and (y) with respect to a the required period of effectiveness for the Shelf Registration Period set forth in Section 2(b) hereof shall be extended by the number of days during which such Shelf Registration Statement required was not effective or usable pursuant to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveforegoing provisions.
(cd) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 60 business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on in an amount equal to $.05 per week per $1,000 principal amount of Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until held by such time as all Registration Defaults have been cured at a per annum rate of 0.25% holder for the first 90 days of the Registration Default Period, which rate . The amount of Special Interest shall increase by an additional 0.25% during $.05 per week per $1,000 principal amount of Registrable Securities with respect to each subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will cease. A for all Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Defaults of the Exchange Offer in the case $.20 per week per $1,000 principal amount of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration DefaultsRegistrable Securities.
(e) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonably necessary or desirable advisable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Sealy Texas Holdings LLC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, no later than May 1, 2005, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Dateno later than July 1, 2005. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its all commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective (other than during any Blackout Period) for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing DateMay 1, 2005 or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(aSection2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 60 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective (other than during any Blackout Period) for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. .
(c) Notwithstanding the foregoing, the Company may suspend may, upon advising the availability Purchasers in writing, pursuant to the advice of outside counsel to the Company, delay the filing or effectiveness of any Shelf Registration Statement (xif not filed or effective, as applicable) or suspend, or otherwise fail to maintain, the effectiveness thereof, for up a period (each, a "Blackout Period") not to exceed (i) an aggregate of 60 15 days in any consecutive twelve-month period if (i) such action fiscal quarter during which the Company is required by applicable law not eligible to use Form S-3 or (ii) such action is taken by 45 consecutive days in any six-month period during which the Company is eligible to use FormS-3, provided, that there shall be at least 60 days during which the Shelf Registration Statement is effective and usable between any two Blackout Periods under this clause (ii), in the event that (x) the Board of Directors of the Company reasonably and in good faith and for valid business reasons (not including avoidance determines that the premature disclosure of a material event at such time would have a material adverse effect on the Company’s obligations hereunder) as determined by the board of directors of the Company 's business, operations or an authorized committee thereof, including the acquisition or divestiture of assets, prospects or (y) with respect the disclosure otherwise relates to a Shelf Registration Statement required to be filed due to a failure to consummate material business transaction which has not been publicly disclosed and the Exchange Offer within the required time period, if such action occurs following the consummation Board of Directors of the Exchange OfferCompany reasonably and in good faith determines that any such disclosure would jeopardize the success of such transaction; provided that provided, that, upon the termination of such Blackout Period, the Company promptly shall promptly notify advise the Electing Holders when Purchasers that such Blackout Period has been terminated. Notwithstanding the Shelf Registration Statement may once again be used or is effectiveforegoing, in no event will the aggregate number of days covered by Blackout Periods exceed 90 days in any twelve-month period.
(cd) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission within 90 days after the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv)any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages ("Liquidated Damages") for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, Default shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% of the principal amount of Registrable Securities for the first 90 days of the Registration Default Period, which rate Period and shall increase by an additional per annum rate of 0.25% during of the principal amount of Registrable Securities for each subsequent 90-day periodperiod of the Registration Default Period until all Registration Defaults have been cured, up to a maximum per annum rate for all Registration Defaults of 0.501.00% regardless per annum of the number principal amount of Registration Defaults Registrable Securities; provided, however, that the Company shall have occurred and in no event be continuing. Following required to pay Liquidated Damages (i) with respect to the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registrable Securities for more than one Registration Default under clause at any given time or (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a with respect to any Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration DefaultsBlackout Period.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Notes Registration Rights Agreement (Interpool Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, and to the extent there are Registrable Securities outstanding on the fifth Business Day after the one year anniversary of the Closing Date, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as promptly as practicable and no later than 45 calendar days after the Closing DateEffective Time of such Exchange Registration Statement. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 30 calendar days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business calendar days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) the Securities are Registrable Securities and (ii) on or prior to the time the Exchange Offer is consummated completed, existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (iiiii) the Exchange Offer has not been completed within 360 45 days following of the fifth Business Day after first anniversary of the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer Date or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify of Registrable Securities notifies the Company that such holder is, prior to the 20th Business Day following the completion of the Exchange Offer that: (A) it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and clause (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for filing obligation arises; provided, that if at any time the Company is or becomes a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliatewell-known seasoned issuer” (as defined in Rule 144405) of and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company pursuant and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to Rule 144 without volume restriction; provided, however, that use all commercially reasonable efforts to keep such Shelf Registration Statement continuously effective until such time as there are no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required or the Guarantors to take any such action with respect to any such holders file more than once every quarter. The Company further agrees to supplement or make amendments one post-effective amendment to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable Statement in any 30 day period. Notwithstanding anything to the registration form used by the Company for such contrary in this Section 2(b), (A) no holder of Registrable Securities may include any of its Registrable Securities in any Shelf Registration Statement or by the Securities Act or rules pursuant to this Agreement unless and regulations thereunder for shelf registration, and until such holder furnishes to the Company in writing, within 20 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement, prospectus or preliminary prospectus and such holder agrees to furnish promptly to each the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not materially misleading and (B) upon notice to the Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement, or extend the time period in which it is required to file the Shelf Registration Statement (x) for one or more periods up to an aggregate of 60 days in the aggregate in any consecutive twelve12-month period (each, a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 calendar days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b2(a) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to or Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective but shall thereafter either be withdrawn by the Company or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein including with respect to any Shelf Registration Statement during any applicable Suspension Period in accordance with the last sentence of Section 2(b)) without being succeeded immediately by an additional registration statement filed and declared effective for more than 60 calendar days in any 12 month period prior to the time the Securities cease to be Registrable Securities (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period; provided, however, that upon the exchange of the Exchange Notes for all Registrable Securities tendered, or upon the effectiveness of the applicable Shelf Registration Statement which had ceased to remain effective, Special Interest on the Registrable Securities in respect of which such Registration Default exists shall cease to accrue. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the The accrual of Special Interest will ceaseshall be the exclusive monetary remedy available to the holders of Registrable Securities for any Registration Default. A Registration Default under clause (iiNotwithstanding anything to the contrary in this Section 2(c), the Company shall not be obligated to pay Special Interest in this Section 2(c) or (iiiduring a Suspension Period permitted by Section 2(b) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodhereof.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (MDC Partners Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Issuers agree to use their respective commercially reasonable efforts to file under the Securities Act on or prior to April 1, 2005, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount at maturity of debt securities issued by the Company and guaranteed by the GuarantorsIssuers, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors Issuers agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Dateon or prior to July 1, 2005. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or SEC policy, the Issuers further agrees agree to use its all commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 30 business days, or longer, if required by the federal securities laws, after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 30 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securities received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuers having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuers having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Issuers agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to use all commercially reasonable efforts to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when the Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities Issuers are not permitted to conduct or the related Guarantees received by holders other than Restricted Holders in consummate the Exchange Offer for Registrable Securities are because the Exchange Offer is not permitted by applicable law or would not be, upon receipt, transferable by each such holder without restriction under the Securities ActSEC policy, (ii) the Exchange Offer has not been completed within 360 on or prior to the date that is 45 days following the Closing Dateafter July 1, 2005 or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuers prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following consummation completion of the Exchange Offer or that (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission SEC policy from participating in the Exchange Offer or such holder Offer; (B) it may not resell the Exchange Securities acquired in the Exchange Offer by it to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder resales; or (other than in either case (xC) due solely to it is a broker-dealer and owns notes acquired directly from the status of such holder as Issuers or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestseither Issuer, the Company and the Guarantors Issuers shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement under the Securities Act on or prior to the date that is 30 days after the time such obligation to file arises, providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors Issuers agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuers in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company Issuers further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees Issuers agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuers have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively (the “Effectiveness Target Date”), (iii) the Exchange Offer has not been consummated completed within 360 30 business days after the Closing Date, or (ii) if a Shelf Effectiveness Target Date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bcompleted) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuers or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on the Accreted Value of the Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Defaults that shall have occurred Default Period and be continuing. Following at a per annum rate of 1.0% thereafter for the cure remaining portion of all the Registration Defaults, the accrual of Special Interest will ceaseDefault Period. A Registration Default under clause (ii) or (iii) will shall be deemed cured not to be continuing, (A) for any Registration Default pursuant to Section 2(c)(i), upon consummation the filing of the Exchange Registration Statement or Shelf Registration Statement, (B) for any Registration Default pursuant to Section 2(c)(ii), upon the effectiveness of such Exchange Registration Statement or Shelf Registration Statement, (C) for any Registration Default pursuant to Section 2(c)(iii), upon the completion of the Exchange Offer and (D) for any Registration Default pursuant to Section 2(c)(iv), upon such Exchange Registration Statement or Shelf Registration Statement (or any successor registration statement) being declared effective or the removal of any stop order giving rise to such Registration Default.
(d) All Special Interest that accrues on or prior to January 15, 2009 will be added to the Accreted Value of such Registrable Security. All Special Interest that accrues after January 15, 2009 will be payable in cash on the next Interest Payment Date. The amount of Special Interest for Registrable Securities will be determined by multiplying the applicable rate of Special Interest by the Accreted Value of all such Registrable Securities outstanding on the Interest Payment Date following such Registration Default in the case of the first such payment of Special Interest with respect to a Registration Default (and thereafter on the next succeeding Interest Payment Date until the cure of such Registration Default), and multiplying such product by a fraction, the numerator of which is the number of days such Special Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months and, in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirementspartial month, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaultsactual number of days elapsed), and the denominator of which is 360.
(e) The Company and the Guarantors Issuers shall take all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Polymer Holdings Capital CORP)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to Issuers shall use their respective commercially reasonable efforts to file under the Securities Act Act, on or prior to January 15, 2010, a registration statement Registration Statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities Notes that are Definitive Notes at the time the Exchange Offer Registration Statement is declared effective by the Commission, for a like aggregate principal amount of debt securities notes issued by the Company and guaranteed by the GuarantorsIssuers, which debt securities and Guarantees notes are substantially identical in all material respects to the Securities and the related Guarantees, respectively Notes (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called notes, collectively, the “Exchange SecuritiesNotes”). Unless the context otherwise requires, all references to an “Exchange Note” or “Exchange Notes” include any related Note Guarantee. The Company and the Guarantors Issuers agree to use their respective commercially reasonable efforts to cause the Exchange Offer Registration Statement to become or be declared effective under the Securities Act within 270 days after the Closing Dateas soon as practicable but in no event later than June 30, 2010. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuers further agrees agree to use its their commercially reasonable efforts to commence complete the Exchange Offer promptly as soon as practicable but in no event later than sixty (60) business days (or longer, if required by the federal securities laws), after the Exchange such Registration Statement becomes has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 twenty (20) business days, days (calculated in accordance with the Exchange Act) and exchange the Exchange Securities Notes for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences The Exchange Offer will be deemed to have been completed only if the Exchange OfferNotes received by holders, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law)other than Restricted Holders, provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not beare, upon receipt, transferable by each such holder without restriction under the Securities Act, 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuers having exchanged the Exchange Notes for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuers having exchanged, pursuant to the Exchange Offer has not been completed within 360 days following the Closing DateOffer, (iii) any Initial Purchaser so requests with respect to Exchange Notes for all Registrable Securities that have been properly tendered and not eligible to be exchanged for Exchange Securities in withdrawn before the Exchange Offer and held by it following consummation expiration of the Exchange Offer or Offer. Within five (iv5) business days following completion of the Exchange Offer, the Issuers shall provide a copy of the Notice and Questionnaire to each holder of Exchange Notes through the facilities of the Depository Trust Company, together with a notice (x) stating that any holder of Exchange Notes that continues to hold Registrable Securities has registration rights pursuant to Section 2(d) of this Agreement and (other than an Initial Purchasery) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or containing instructions as to how such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for exercise such resales by such holder registration rights.
(other than in either case (xb) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), The Issuers shall use their respective commercially reasonable efforts to to, as soon as practicable after the Trigger Date, but in no event later than June 30, 2010, file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii)Securities, the which Registrable Securities are held by the Initial Purchasers)Restricted Holders, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statementRegistration Statements, collectively, the “Shelf Registration Statement”). The Company and the Guarantors Issuers agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 by the Commission as soon as practicable but in no event later than ninety (90) days after the date on which the such obligation to file arises and to keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of the Effective Time or at such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restrictionoutstanding; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder and a Restricted Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuers in accordance with Section 3(d)(iii3(e)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company Issuers further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees Issuers agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuers have not filed the Exchange Offer Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated within 360 sixty (60) business days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Offer Registration Statement (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iiiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and becomes or is declared effective, and during effective but shall thereafter either be withdrawn by either of the period the Company and the Guarantors are required Issuers or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(c), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the aggregate principal amount of the outstanding Transfer Restricted Notes (as defined below) affected by such Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 ninety (90) days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that Default Period. All accrued Special Interest shall be paid in cash by the Issuers on each Interest Payment Date (as defined in the Indenture). Notwithstanding the foregoing, a Registration Default shall not be deemed to have occurred and be continuing. Following the cure as a result of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) a failure to file or (iii) will be deemed cured upon consummation of the have declared effective an Exchange Offer in the case of a Shelf Registration Statement required to be filed due to or as a result of a failure to consummate the Exchange Offer within if (x) on or prior to the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and is completed (iiA) is subject to prospectus delivery requirements cannot fulfill existing law or Commission policy or interpretations are changed such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.the
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Charter Communications Inc /Mo/)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, practicable but in any event within 120 days after the Closing Date a “shelf” shelf registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders Holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (Commission. The Company shall give notice to all Holders of such filing, filings and shall name in such Shelf Registration Statement as selling securityholders all Notice Holders who have submitted their Notice and Questionnaire to the “Shelf Registration” and Company at least 5 business days prior to the effectiveness of such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree shall give all Holders notice of effectiveness of such Shelf Registration Statement. The Company agrees to use their respective commercially its reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective as soon as practicable but in any event within 90 210 days after the date on which the obligation Closing Date and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on until the earlier of (i) the first second anniversary of the Effective Time or Closing Date and (ii) such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by outstanding (the “Effective Period”). None of the Company’s securityholders (other than Holders of Registrable Securities) shall have the right to include any of the Company’s securities in the Shelf Registration Statement.
(b) The Company further agrees that it shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act; and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading, and the Company agrees to furnish to the Holders of the Registrable Securities copies of any supplement or amendment prior to its being used or promptly following its filing with the Commission; provided, however, that the Company shall have been sold no obligation to deliver to Holders of Registrable Securities copies of any supplement or amendment consisting exclusively of an Exchange Act report or other Exchange Act filing otherwise publicly available on the Company’s website. If the Shelf Registration Statement, as amended or supplemented from time to time, ceases to be effective for any reason at any time during the Effective Period, the Company shall use its reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.
(c) Each Holder of Registrable Securities agrees that if such Holder wishes to sell Registrable Securities pursuant to the Shelf Registration Statement or are distributed and related Prospectus, it will do so only in accordance with this Section 2(c) and Section 3(b). From and after the date the Shelf Registration Statement is declared effective, the Company shall, as promptly as is practicable after the date a Notice and Questionnaire is delivered,
(i) if required by applicable law, file with the Commission a post-effective amendment to the public Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling security holder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use its reasonable efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable;
(ii) provide such Holder copies of any documents filed pursuant to Rule 144 Section 2(c)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(c)(i); provided that the Company shall not be required to make more than one such filing in any calendar quarter in the form of a post-effective amendment to the Shelf Registration Statement or would supplement to the Prospectus; provided, further, that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(b). Notwithstanding anything contained herein to the contrary, the Company shall be eligible under no obligation to be sold by a person name any Holder that is not an “affiliate” (a Notice Holder as defined a selling securityholder in Rule 144) of the Company pursuant to Rule 144 without volume restrictionany Shelf Registration Statement or related Prospectus; provided, however, that no holder any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2(c) (whether or not such Holder was a Notice Holder at the time the Shelf Registration Statement was declared effective) shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use related Prospectus in accordance with the prospectus forming a part thereof for resales requirements of Registrable Securities unless such holder is an Electing Holder, and this Section 2(c).
(yd) after the Effective Time If any of the Shelf following events (any such event a “Registration StatementDefault”) shall occur, promptly upon then additional dividends (the request “Additional Dividends”) shall cumulate to Holders in respect of any holder the Preferred Stock in accordance with the Certificate of Registrable Securities that is not then an Electing Holder Designation and cash amounts (the “Liquidated Damages Amount”) shall become payable to take any action reasonably necessary to identify such holder Holders of the Shares as a selling securityholder in follows:
(i) if the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply is not filed with the Securities Act or rules Commission within 120 days following the Closing Date, then commencing on the 121st day after the Closing Date, and regulations thereunderfor each day thereafter (i) Additional Dividends shall cumulate in respect of any share of Preferred Stock then outstanding, at a rate of 0.25% per annum of the aggregate liquidation preference of such share of Preferred Stock and (ii) Liquidated Damages Amount shall accrue in respect of each share of the Shares then outstanding, at a rate of 0.25% per annum of the Closing Sale Price (as defined in the Certificate of Designations) on such day with respect to such Share, in each case for the first 90 days following such 121st day and at a rate of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement is not declared effective by the Commission within 210 days following the Closing Date, then commencing on the 211th day after the Closing Date, and for each day thereafter (i) Additional Dividends shall cumulate in respect of any share of Preferred Stock then outstanding, at a rate of 0.25% per annum of the aggregate liquidation preference of such share of Preferred Stock and (ii) Liquidated Damages Amount shall accrue in respect of each share of the Shares then outstanding, at a rate of 0.25% per annum of the Closing Sale Price (as defined in the Certificate of Designations) on such day with respect to such Share, in each case for the first 90 days following such 211th day and at a rate of 0.5% per annum thereafter; or
(iii) if the Shelf Registration Statement has been declared effective but such Shelf Registration Statement ceases to be effective at any time during the Effective Period (other than pursuant to Section 3(b) hereof), then commencing on the day such Shelf Registration Statement ceases to be effective, and for each day thereafter (i) Additional Dividends shall cumulate in respect of any share of Preferred Stock then outstanding, at a rate of 0.25% per annum of the aggregate liquidation preference of such share of Preferred Stock and (ii) Liquidated Damages Amount shall accrue in respect of each share of the Shares then outstanding, at a rate of 0.25% per annum of the Closing Sale Price (as defined in the Certificate of Designations) on such day with respect to such Share, in each case for the first 90 days following such date on which the Shelf Registration Statement ceases to be effective and at a rate of 0.5% per annum thereafter; or
(iv) if the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period pursuant to Section 3(b) hereof, then commencing on the day the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period (and again on the first day of any subsequent Deferral Period during such period), and for each day thereafter (i) Additional Dividends shall cumulate in respect of any share of Preferred Stock then outstanding, at a rate of 0.25% per annum of the aggregate liquidation preference of such share of Preferred Stock and (ii) Liquidated Damages Amount shall accrue in respect of each share of the Shares then outstanding, at a rate of 0.25% per annum of the Closing Sale Price (as defined in the Certificate of Designations) on such day with respect to such Share, in each case for the first 90 days and at a rate of 0.5% per annum thereafter; provided, however, that (i) nothing the Additional Dividends and the Liquidation Damages Amount rate on the Preferred Stock and the Shares shall not exceed in this clause (y) shall relieve any such holder of the obligation to return a completed aggregate 0.5% per annum and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders payable under more than once every quarter. The Company further agrees to supplement or make amendments to one clause above for any given period of time, except that if the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, Additional Dividends and the Company agrees to furnish to each Electing Holder copies Liquidation Damages Amount would be payable under more than one clause above, but at a rate of any such supplement or amendment promptly following its 0.25% per annum under one clause and at a rate of 0.5% per annum under the other, then the Additional Dividends and the Liquidation Damages Amount rate shall be the higher rate of 0.5% per annum; provided further, however, that (1) upon the filing with of the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate in the case of 60 days in any consecutive twelve-month period if clause (i) such action is required by applicable law or above), (2) upon the effectiveness of the Shelf Registration Statement (in the case of clause (ii) such action is taken by above), (3) upon the Company in good faith and for valid business reasons (not including avoidance effectiveness of the Company’s obligations hereunderShelf Registration Statement which had ceased to remain effective (in the case of clause (iii) as determined above), (4) upon the termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods in a period set forth in Section 3(b) to be exceeded (in the case of clause (iv) above) or (5) upon the date the Securities cease to be Registrable Securities, the Additional Dividends and the Liquidation Damages Amount shall cease to accrue. Additional Dividends shall be payable, if and when declared by the board of directors of the Company or an authorized committee thereofCompany, including as set forth in the acquisition or divestiture Certificate of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate Designations. The Liquidation Damages Amount on the Exchange Offer within the required time periodShares, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company any, will cumulate from and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after including the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition occurs to but excluding the Base Interest, shall accrue date on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as which all Registration Defaults have been cured and will be payable in cash on November 15 and May 15 of each year (the “Liquidation Damages Amount Payment Date”) to holders of record of outstanding Shares at a per annum rate the close of 0.25% for business on November 1 or May 1, as the first 90 days of case may be, immediately preceding the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuingrelevant Liquidated Damages Payment Date. Following the cure of all Registration DefaultsDefaults requiring the payment of Additional Dividends or Liquidation Damages Amounts to the Holders of Securities Registrable Securities pursuant to this Section, the accrual of Special Interest Additional Dividends or Liquidation Damages Amounts will cease. A cease (without in any way limiting the effect of any subsequent Registration Default under clause (ii) requiring the payment of Additional Dividends or (iii) will be deemed cured upon consummation Liquidation Damages Amounts). All of the Exchange Offer Company’s obligations set forth in this Section 2(d) that are outstanding with respect to any Registrable Security at the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or such security ceases to be effective a Registrable Security shall survive until such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill time as all such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above obligations with respect to Registration Defaults.
such security have been satisfied in full (e) The Company and notwithstanding termination of this Agreement). Notwithstanding the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure foregoing, the parties agree that the transactions contemplated herein sole monetary damages payable for a violation of the terms of this Agreement with respect to which additional monetary amounts are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time expressly provided shall be deemed as set forth in this Section 2(d). Nothing shall preclude a Notice Holder or Holder of Registrable Securities from pursuing or obtaining specific performance or other equitable relief with respect to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such timethis Agreement.
Appears in 1 contract
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective all commercially reasonable efforts to file under the Securities Act Act, no later than 180 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantors (the “Guarantee”), which debt securities and Guarantees guarantees are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Unless the Exchange Offer will would not be registered permitted by applicable law or Commission policy, the Company further agrees to use all commercially reasonable efforts to register the Exchange Offer under the Securities Act on the appropriate form and will comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Offer Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the period Commission under the Exchange Act, or longer if required by applicable law the federal securities laws and (including pursuant iii) issue on or prior to any applicable interpretation by the staff of the Commission), but in any event for at least 10 40 business days, or longer if required by the federal securities laws, after the date on which the Exchange Offer Registration Statement was declared effective by the Commission, Exchange Securities in exchange for the Securities tendered prior thereto in the Exchange Offer. The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and exchange related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to before the expiration of the Exchange Offer. If , which shall be on a date that is at least 20 and not more than 30 Business Days following the Company commences commencement of the Exchange Offer, or longer if required by the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offerfederal securities laws. The Company and the Guarantors agree (x) to include in the Exchange Offer Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the With respect to such Exchange Offer Registration Statement, such holders shall be required to represent to have the Company that (i) any Exchange Securities received by such holder will be acquired benefit of the rights of indemnification and contribution set forth in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Offer Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date30 Business Days of such Effective Time, unless federal securities laws require a longer period, or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective all commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 60 days after the time such obligation to file arises (but no earlier than 180 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 270 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 180 days after the Closing Date or 60 days after such filing obligation arises); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of (a) one year after the first anniversary of the Effective Time or such shorter period that will terminate when all the Registrable Securities covered by date the Shelf Registration Statement have been sold pursuant to is declared effective and (b) the Shelf Registration Statement or date on which all Registrable Securities registered thereunder are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined disposed of in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no accordance therewith. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required to take any such action with respect to any such holders file more than once every quarter. The Company further agrees to supplement or make amendments one post-effective amendment to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable Statement in any 45 day period. Notwithstanding anything to the registration form used by contrary in this Section 2(b), upon notice to the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) Statement, or extend the time period in which it is required to file the Shelf Registration Statement, for up to an aggregate of 30 consecutive days and up to 60 days in the aggregate, in each case in any consecutive twelve12-month period (each a “Suspension Period”), if (i) such action is required by applicable law or (ii) such action is taken the Company delivers a written certificate to the Electing Holders signed by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors Chief Financial Officer of the Company or an authorized committee thereof, including certifying that the acquisition or divestiture Board of assets, or (y) with respect to Directors of the Company has determined that there is a valid business purpose for suspension of the Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Offer Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement (other than the Exchange Offer Registration Statement, if the Exchange Offer is not permitted by applicable law or Commission Policy) has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 40 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Offer Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Offer Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest subject to the provisions of Section 9(b), Special Interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that may exist at such time, and Special Interest shall have occurred and be continuing. Following immediately cease to accrue upon the cure of all Registration Defaults, the . The accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will shall be deemed cured upon consummation the exclusive monetary remedy available to the Holders of the Exchange Offer in the case of a Shelf Registrable Securities for any Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Offer Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) Notwithstanding anything to the contrary in this Agreement, the obligation of the Company under this Section 2 shall terminate with respect to any Security that ceases to be a Registrable Security in accordance with the definition of “Registrable Securites.”
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Dycom Industries Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”, ," and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its commercially reasonable efforts to commence (A) complete the Exchange Offer promptly promptly, but no later than 40 business days after the such Exchange Registration Statement becomes has become effective, hold the Exchange Offer open for the period required by applicable law and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and B) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and the related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted Securities for all the Registrable Securities validly that have been properly tendered in accordance with and not withdrawn before the terms expiration of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing laws or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 210 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect a holder notifies the Company prior to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following the consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by to such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 60 days after the time such obligation to file arises or 150 days following the Closing Date, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing HolderHolder who agrees to be bound by all of the provisions of this Agreement applicable to such holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company and the Guarantors in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. .
(c) Notwithstanding the foregoing, the Company may suspend Company, upon advising the availability Purchasers in writing, may, pursuant to the advice of outside counsel to the Company, delay the filing or effectiveness of any Exchange Registration Statement or Shelf Registration Statement (xif not filed or effective, as applicable) or suspend, or otherwise fail to maintain, the effectiveness thereof, for up a period (the "Blackout Period") not to exceed an aggregate of 60 days in any twelve consecutive twelve-month period if in the event that (i1) such action is required by applicable law or (ii) such action is taken by the Board of Directors of the Company reasonably and in good faith and for valid business reasons (not including avoidance determines that the premature disclosure of a material event at such time would have a material adverse effect on the Company’s obligations hereunder's business, operations or prospects or (2) as determined by the board disclosure otherwise relates to a material business transaction which has not been publicly disclosed and the Board of directors Directors of the Company or an authorized committee thereofreasonably and in good faith determines that any such disclosure would jeopardize the success of such transaction; provided, including that upon the acquisition or divestiture termination of assetssuch Blackout Period, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company promptly shall promptly notify advise the Electing Holders when the Shelf Registration Statement may once again be used or is effectivePurchasers that such Blackout Period has been terminated.
(cd) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively (each, an "Effectiveness Target Date"), or (iii) the Exchange Offer has not been consummated within 360 40 business days after the Closing Date, or Effectiveness Target Date relating to the Exchange Offer (ii) if a Shelf Registration Statement the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effectiveeffective but shall thereafter, and during if on or after the period date on which such registration statement is required to become or declared effective pursuant to Section 2(a) or 2(b) hereof, either be withdrawn by the Company and or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Guarantors are required to use their respective Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein) without the Company proceeding promptly, with commercially reasonable efforts to cause the Shelf Registration Statement to remain effectivefile, (x) the Company shall and have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be declared effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% $.05 per week per $1,000 principal amount of Notes for the first 90 days of the Registration Default Period, which rate and the amount of Special Interest shall increase by an additional 0.25% during $.05 per week per $1,000 principal amount of Notes with respect to each subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will cease. A of $.25 per week per $1,000 principal amount of Notes for the remaining portion of the Registration Default under clause Period. Notwithstanding the foregoing, (ii1) or the amount of Special Interest payable shall not increase because more than one Registration Default has occurred and is pending and (iii2) will be deemed cured upon consummation a Holder of Registrable Securities that is not entitled to the benefits of the Exchange Offer in the case of a Shelf Registration Statement required (e.g., such Holder has not elected to include information) shall not be filed due entitled to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above Special Interest with respect to a Registration DefaultsDefault that pertains to the Shelf Registration Statement.
(e) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Amscan Holdings Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable its best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Wydiv Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company Issuer and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Issuer and the Guarantor further agrees agree to use its commercially reasonable their best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 20 business days, days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Issuer having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 Offer, which shall be on a date that is at least 20 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Issuer and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus Prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of Purchasers for any Securities acquired directly from the Company within Issuer and the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsGuarantor, the Company Issuer and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days in the case of clause (i) or (ii) and 90 days in the case of clause (iii) after the time such obligation to file arises, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Issuer and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus Prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the Prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuer in accordance with Section 3(d)(ii) and 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivehereof.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuer and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period Issuer or the Company and the Guarantors are required Guarantor or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 7(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company Issuer and the Guarantors Guarantor shall each take all actions reasonably reasonable and necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions reasonable and necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein Each holder of Registrable Securities hereby acknowledges and agrees that any broker-dealer and any such holder using the Exchange Offer to participate in a distribution of the Exchange Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or prospectus 508, as applicable, of any time Regulation S-K under the Act if the resales are of Exchange Securities obtained by such holder in exchange for Registrable Securities acquired by such holder directly from the Issuer or one of its affiliates. Accordingly, the Issuer’s obligation to accept for exchange a holder’s Registrable Securities tendered in the Exchange Offer shall be deemed conditioned upon such holder representing to include the Issuer that, at the time of the consummation of the Exchange Offer:
(i) that any document incorporated, or deemed to Exchange Securities received by such holder will be incorporated, therein by reference as acquired in the ordinary course of such time holder’s business;
(ii) that such holder will have no arrangement or understanding with any person to participate in the distribution of the Exchange Securities within the meaning of the Act;
(iii) that such holder is not an affiliate of the Issuer; and
(iv) that if such holder is a broker-dealer that it will receive Exchange Securities for its own account in exchange for Registrable Securities acquired as a result of market making activities or other trading activities and acknowledges that such holder will deliver a Prospectus in connection with any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as resale of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such timethe Exchange Securities.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Berkshire Hathaway Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing DateAct. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse)(4).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 360 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer has not been consummated completed within 360 days after the Closing Date, Date or (iiii)(x) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, (if required) has not become or been declared effective within the later of 90 days after such Shelf Registration Statement filing obligation arises and 360 days after the Closing Date or (iiiy) if any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through and (iiiii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodmay exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities are hereinafter called referred to as, the “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to to, unless the Exchange Offer would not be permitted by law or Commission policy, use its commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Transfer Restricted Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the The Exchange Offer, the Company Offer will be entitled deemed to close have been “completed” only if the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities debt securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders Holders other than Restricted Holders in the Exchange Offer for Registrable Transfer Restricted Securities are not or would not beare, upon receipt, transferable by each such holder Holder without restriction under Section 5 of the Securities Act, . The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (iii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be Company having exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the all outstanding Transfer Restricted Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplatedhaving exchanged, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.pursuant to
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Aztar Corp)
Registration Under the Securities Act. (a) Except The Company agrees to file with the Commission as set forth soon as practicable after the Closing Date, but in Section 2(b) belowno event later than the 120th day after the Closing Date, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file Share Shelf Registration Statement. The Share Shelf Registration Statement shall be on Form S-3 under the Securities Act a or another appropriate form permitting registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities Shares and the Other Shares for a like aggregate principal amount of debt securities issued resale by the Company and guaranteed by Holders from time to time in open market transactions (with or without the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits use of a trust indenture which is substantially identical to the Indenture one or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to more brokers) or through an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”)underwritten offering. The Company shall not permit any securities other than the Shares and the Guarantors agree Other Shares to be included in the Share Shelf Registration Statement. The Company shall use their respective commercially its reasonable best efforts to cause the Exchange Share Shelf Registration Statement to become be declared effective under the Securities Act within 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicablepracticable following the filing thereof, a “shelf” registration statement providing for the registration ofbut in no event later than 60 days following such filing date, and to keep the sale on Share Shelf Registration Statement continuously effective under the Securities Act thereafter for a continuous period ending the earlier of (i) three years from the Closing Date (subject to extension pursuant to Section 2(e) below), or delayed basis by the holders of, all of the (ii) when there ceases to be any outstanding Shares or Other Shares which are Registrable Securities (or the "Purchase Shelf Effectiveness Period").
(b) After the occurrence of a Purchase Event (as defined in the Warrant Agreement or the Other Warrant Agreement, as the case of clause (iiimay be), the Registrable Securities held by the Initial Purchasers), pursuant Company agrees to Rule 415 or any similar rule that may be adopted by file with the Commission (at the request of any registered holder of Warrants, Warrant Shares, Other Warrants or Other Warrant Shares, but in no event later than the 90th day after any such filingregistered holder makes such request, the “Shelf Registration” and such registration statement, the “Warrant Shelf Registration Statement”. The right of the Purchaser to request registration of the Warrant Shares shall expire on the Expiration Date of the Warrants (as defined in the Warrant Agreement). The Warrant Shelf Registration Statement shall be on Form S-3 under the Securities Act or another appropriate form permitting registration of such Warrant Shares and Other Warrant Shares for resale by the Holders from time to time in open market transactions (with or without the use of one or more brokers) or through an underwritten offering. The Company shall not permit any securities other than the Warrant Shares and the Guarantors agree Other Warrant Shares to be included in the Warrant Shelf Registration Statement. The Company shall use their respective commercially its reasonable best efforts (x) to cause the Warrant Shelf Registration Statement to become be declared effective within 90 pursuant to the Securities Act as promptly as practicable following the filing thereof, but in no event later than 60 days after the date on which the obligation following such filing date, and to file keep such Warrant Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective under the Securities Act thereafter for a period ending on the earlier of (i) twelve months from the first anniversary date the Warrant Shelf Registration Statement becomes effective (subject to extension pursuant to Section 2(e) below), or (ii) when there ceases to be any outstanding Warrant Shares and Other Warrant Shares which are Registrable Securities (the "Warrant Shelf Effectiveness Period," and each of the Effective Time Purchase Shelf Effectiveness Period and Warrant Shelf Effectiveness Period, an "Effectiveness Period").
(c) In the event that either (i) the no action relief contemplated by Section 7.7 of the Stock Purchase Agreement and Other Stock Purchase Agreement is obtained or (ii) the Company determines in its sole and absolute discretion that there has been a change in law or change in administrative interpretation by the Commission that would permit the Company to file a shelf registration statement (the "Exercise Shelf Registration Statement") under the Securities Act to register the offer and sale by the Company of the Common Stock issuable upon exercise of the Warrants and Other Warrants after the occurrence of a Purchase Event (as defined in the Warrant Agreement and Other Warrant Agreement, as the case may be) and such shorter filing will not result in the loss of the exemption from the registration requirements under the Securities Act which was relied on by the Company for the offer and sale of any of the Shares, Other Shares, Warrants or Other Warrants, at the request of any registered holder of Warrants, Warrant Shares, Other Warrants or Other Warrant Shares, the Company shall file with the Commission the Exercise Shelf Registration Statement. The Company shall use its reasonable best efforts to cause such Exercise Shelf Registration Statement to be declared effective as promptly as practicable after the filing thereof and to keep such Exercise Shelf Registration Statement continuously effective under the Securities Act thereafter for a period that ending on the earlier of (i) three years from the Closing Date (subject to extension pursuant to Section 2(e) below) or (ii) when there ceases to be any outstanding Warrants and Other Warrants which have not expired or been exercised. As soon as practicable after (a) the Exercise Shelf Registration Statement is declared effective under the Securities Act and (b) the Warrant Agreement, Other Warrant Agreement, Warrants and Other Warrants shall have been amended by the Company and each of the registered holders of Warrants and Other Warrants in a manner acceptable to the Company to provide for a suspension of the right of any registered holder of Warrants or Other Warrants to exercise such Warrants or Other Warrants in the event the Exercise Shelf Registration Statement shall not continue to remain effective with the Commission, the Company will terminate when amend this Agreement in a manner consistent with the other terms hereof to provide for the filing of a shelf registration statement under the Securities Act covering the resale of the Warrants and Other Warrants.
(d) If, for any reason, any of the Shelf Registration Statements loses its effectiveness during its applicable Effectiveness Period, the Company shall file with the Commission as soon as practicable, but in no event later than 60 days after the date such shelf registration statement loses its effectiveness, another registration statement covering all of the Registrable Securities which were covered by the Shelf Registration Statement have been sold pursuant to which so lost its effectiveness; provided, that if the Company has notice that any Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of will lose its effectiveness, the Company pursuant shall use its reasonable best efforts to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in file another registration statement covering the Registrable Securities which are covered by such Shelf Registration Statement or to use for the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) applicable Effectiveness Period as soon as practicable after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify Company receives such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that notice.
(ie) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the The Company shall not be required use its reasonable best efforts to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to keep the Shelf Registration Statement, shelf registration statements continuously effective by supplementing and amending them as and when required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or shelf registration statement if required by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken reasonably requested by the Company Holders of a majority in good faith and for valid business reasons (not including avoidance aggregate principal amount of the Company’s obligations hereunder) as determined Registrable Securities covered by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offershelf registration statement; provided that the Company applicable Effectiveness Period shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors fail extended to fulfill their obligations under this Section 2 and that it would not be feasible to ascertain the extent of such damages necessary to permit dealers to comply with precision. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to applicable prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaultsof Rule 174 and as otherwise provided herein.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Registration Rights Agreement (Aames Financial Corp/De)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to file under the Securities Act Act, within 150 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantors (if any), which debt securities and Guarantees guarantees (if any) are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d2 (d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 240 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effectivepromptly, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 270 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial a Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially its reasonable best efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” ’ registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become effective within 90 150 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially its reasonable best efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first second anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be become eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company for resale pursuant to Rule 144 without volume restriction, if any; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 30 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof), including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer the Company has not been consummated within 360 filed the Exchange Registration Statement or a Shelf Registration Statement (applicable to all of the Registrable Securities) on or before 150 days after the Closing Date, or (ii) the Exchange Registration Statement has not become effective or been declared effective by the Commission on or before 240 days after the Closing Date, or (iii) the Exchange Offer has not been consummated within 270 days after the Closing Date, or (iv) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 150 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are is required to use their respective commercially its reasonable best efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 30 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 60 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses clauses
(i) through (iiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (iiiv) or (iiiv) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final penultimate sentence of the first paragraph of Section 2(a) hereof the Exchange Offer Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees (if any) under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (VWR International, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Guarantor agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsGuarantor, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Each of the Company and the Guarantors agree Guarantor agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act. The Each of the Company and the Guarantor further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences and the Guarantor having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company and the Guarantor having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such as a matter of law to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors Guarantor shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors Guarantor agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 120 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, provided further, that subject to the requirements set forth in Section 3(e) hereof, the Company and the Guarantor may, by notice to holders of Registrable Securities, suspend the availability of the Shelf Registration Statement and the use of the related prospectus for up to an aggregate of 30 days in any consecutive 90 day-period and 90 days in any consecutive twelve-month period, if the board of directors of either of the Company or the Guarantor determines in good faith that it is in the Company's or the Guarantor's best interests to refrain from disclosing the existence of, or facts surrounding any proposed or pending material corporate transaction or other material non-public information that would be required to be disclosed or incorporated by reference in the Shelf Registration Statement and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company and the Guarantor in accordance with Section 3(d)(iii3(d)(ii) hereof and or (iiiii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Guarantor further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees and the Guarantor agree to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantor have not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Dateinitial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be made), or (iiiv) if a any Exchange Registration Statement or Shelf Registration Statement required to be filed under by Section 2(a) or 2(b) hereof is not filed and declared effective on but shall thereafter either be withdrawn by the Company or before 90 days after the date on which Guarantor or shall become subject to an effective stop order issued pursuant to Section 8(d) of the obligation to file Securities Act suspending the Shelf Registration Statement arises, effectiveness of such registration statement (except as specifically permitted herein) without being succeeded immediately by an additional registration statement filed and declared effective or (iiiv) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors Guarantor are required to use their respective commercially reasonable best efforts to cause the Shelf Registration Statement to remain effective, (x) the Company and the Guarantor shall have suspended the availability of the Shelf Registration Statement and the use of the related prospectus pursuant to Section 2(b) hereof for more than 60 30 days in the aggregate in any consecutive 90 day-period and 90 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% of the aggregate principal amount of the outstanding Registrable Securities for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodPeriod.
(d) If during the 90 day period referenced in the final sentence Each of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors Guarantor shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Platinum Underwriters Holdings LTD)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 60 days after the Closing, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”, ," and such offer, the “"Exchange Offer”") any and all of the Securities Initial Notes for a like aggregate principal amount at maturity of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively Initial Notes (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and Indenture, which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”Notes"). The Company and the Guarantors agree agrees to use their respective commercially reasonable its best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 150 days after the Closing DateClosing. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the issue Exchange Securities Notes for all Registrable Securities Notes that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the The Exchange Offer, the Company Offer will be entitled deemed to close have been "completed" only if the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not beNotes are, upon receipt, transferable by each such holder without restriction under need for further compliance with Section 5 of the Securities Act, (ii) Act and the Exchange Offer has not been completed within 360 days following Act (except for the Closing Date, (iii) any Initial Purchaser so requests with respect requirement to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering deliver a prospectus and the prospectus contained included in the Exchange Registration Statement is not available for such applicable to resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives of Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to received by such broker-dealers dealer pursuant to an Exchange Offer in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company exchange for Registrable Notes other than those acquired by the broker-dealer directly from the Company), and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees without material restrictions under the registration statement contemplated in Section 2(a) blue sky or 2(b) hereof, as applicable.
(f) Any reference herein to securities laws of a registration statement or prospectus as substantial majority of any time the States of the United States of America. The Exchange Offer shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.have been
Appears in 1 contract
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 150 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, Guarantors which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 30 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 30 business days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating ; PROVIDED, HOWEVER, that in the Exchange Offer shall be required to represent to either case, the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not receives written notice from a broker-dealer, dealer that 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 it will receive Exchange Securities for its own account in exchange for dealer holds Registrable Securities that were acquired for the account of such broker-dealer as a result of market-market making activities or other trading activities similar activities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (other than Securities acquired directly from the Company or any of its affiliatesc), (d) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 240 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 30 days after the time such obligation to file arises, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"); PROVIDED, HOWEVER, that nothing in this Section 2(b) shall require the filing of a Shelf Registration Statement prior to the filing deadline for the Exchange Registration Statement. The Company and the Guarantors agree agrees to use their respective commercially its reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 60 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; providedoutstanding, howeverPROVIDED, HOWEVER, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the written request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; providedStatement, howeverPROVIDED, HOWEVER, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to use its reasonable best efforts to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding After such Shelf Registration Statement has been declared effective by the foregoingCommission, the Company may suspend shall not be obligated to amend or supplement it more than one time per quarterly period for the availability sole purpose of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectivenaming additional holders.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 30 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced succeeded within 90 five business days by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% on the principal amount of the Registrable Securities for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.0% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all reasonable actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Imc Usa Holdings Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors Issuers agree to use their respective commercially reasonable efforts to file under the Securities Act a one or more registration statement statements relating to an offer to exchange (such registration statementstatements, together, the “Exchange Registration Statement”, ,” and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsIssuers, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Additional Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors Issuers agree to use their respective all commercially reasonable efforts to cause complete the Exchange Registration Statement to become effective under the Securities Act within 270 Offer no later than 365 days after the Closing Issue Date (the “Exchange Date”). The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuers further agrees agree to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with Regulation 14E promulgated by the period Commission under the Exchange Act, or longer, if required by applicable law the federal securities laws and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only: (i) if the Company commences Exchange Securities received by holders, other than Restricted Holders, in the Exchange Offer 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 and (ii) upon the Issuers having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 business days after Offer, which shall be on a date that is at least 20 Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors Issuers agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 5(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed, existing law or Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following by the Closing DateExchange Date (provided, that the Issuers’ failure to complete the Exchange Offer by the Exchange Date shall be considered a Registration Default for which Additional Interest shall be payable pursuant to Section 2(c) hereof until such time as a Shelf Registration Statement covering resales of the Registrable Securities has become or is declared effective) or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Issuers prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Issuers or an affiliate of the Company within Issuers, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors Issuers shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a no later than 30 days after the time such obligation to file arises (but no earlier than the Exchange Date) one or more “shelf” ’ registration statement statements providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule Rule that may be adopted by the Commission (such filing, the “Shelf Registration” ”, and such registration statementstatements, the “Shelf Registration Statement”). The Company and the Guarantors Issuers agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on (but no earlier than the earlier of Exchange Date); provided that if at any time the first anniversary of the Effective Time Issuers are 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an become “affiliatewell-known seasoned issuers” (as defined in Rule 144405) and are eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Issuers shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Issuers agree to use all commercially reasonable efforts to keep such Shelf Registration Statement continuously effective until the Company pursuant to Rule 144 without volume restriction; provided, however, that earlier of six months following the Effective Time or such time as there are no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Issuers agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunderidentifying such holder); provided, however, that (i) nothing in this clause sentence shall (yA) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company Issuers in accordance with Section 3(d)(iii) hereof and or (iiB) require the Company shall not be required Issuers to take any such action with respect to any such holders file more than once every quarter. The Company further agrees to supplement or make amendments one post-effective amendment to the Shelf Registration StatementStatement in any 45-day period; provided, as and when required by however, this clause (B) shall not be applicable for the rules, regulations or instructions applicable last 60 days that the Shelf Registration Statement is effective. Notwithstanding anything to the registration form used by contrary in this Section 2(b), upon notice to the Company for Electing Holders, the Issuers may suspend the use or the effectiveness of such Shelf Registration Statement Statement, or by extend the Securities Act or rules and regulations thereunder for shelf registration, and time period in which it is required to file the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for one or more periods up to an aggregate of 60 90 days in the aggregate in any consecutive twelve12-month period (each, a “Suspension Period”) if (i) such action the Issuers deliver a written certificate to the Electing Holders signed by either the Chief Executive Officer of each of the Issuers or the Chief Financial Officer of each of the Issuers, certifying that each Issuer has determined that there is required by applicable law or (ii) such action is taken by the Company in good faith and for a valid business reasons (not including avoidance purpose for suspension of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodStatement; provided, if such action occurs following the consummation of the Exchange Offer; provided that the Company Issuers shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effectiveeffective and, provided further, that the period during which the Issuers are required to maintain the effectiveness of the Shelf Registration Statement shall be extended by the length of the Suspension Period.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Issuers have not filed the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(b), or (ii) the Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(b), or (iii) the Exchange Offer has not been consummated within 360 days after completed by the Closing Date, or Exchange Date (ii) if a Shelf Registration Statement the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during effective but shall thereafter either be withdrawn by the period the Company and the Guarantors are required Issuers or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special subject to the provisions of Section 8(b), additional interest (“Special Additional Interest”), in addition to the Base Interest, shall accrue on the outstanding principal amount of the Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which Period and at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Default Period. Additional Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuingmay exist at such time. Following the cure of all Registration Defaults, the The accrual of Special Additional Interest will cease. A shall be the exclusive monetary remedy available to the holders of Registrable Securities for any Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors Issuers shall take all actions reasonably necessary or advisable to be taken by it them to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Registration Rights Agreement (Energy Future Intermediate Holding CO LLC)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts Bank agrees to file or cause to be filed under the Securities Act Act, as soon as practicable, but not later than 255 days after the Settlement Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsBank, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust an indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act Act, and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree Bank agrees to use their respective commercially its reasonable best efforts to cause the Exchange Offer Registration Statement to become effective by the Commission under the Securities Act within 270 as soon as practicable, but no later than 315 days after the Closing Settlement Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company Bank further agrees to use its commercially reasonable best efforts to commence and complete the Exchange Offer promptly promptly, but no later than 350 days after the Exchange Registration Statement becomes effectiveSettlement Date, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 30 days and exchange the issue and deliver Exchange Securities in exchange for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end Each holder of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered who wishes to exchange such Registrable Securities for Exchange Securities in, and in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in of, the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall will be required to represent to the Company make certain customary representations in connection therewith, including representations that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, Restricted Holder. Upon the distribution effectiveness of the Exchange SecuritiesOffer Registration Statement, the Bank shall promptly commence the Exchange Offer, it being the objective of such Exchange Offer that each holder (vother than a Restricted Holder) if such holder is a broker-dealer, that it electing to participate in the Exchange Offer will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not beare, upon receipt, transferable by each such holder without restriction under the Securities Act, 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (iii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be Bank having exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the outstanding Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject the Bank having exchanged, pursuant to prospectus delivery requirements canthe Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not fulfill such requirementswithdrawn before the expiration of the Exchange Offer, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time which shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as on a date that is at least 30 days following the commencement of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.the
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Macro Bank Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”", and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing DateAct. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence complete the Exchange Offer promptly no later than 60 days after the Exchange Registration Statement becomes effectiveits commencement, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, 20 days and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer 30 business Offer, which shall be on a date that is at least 20 days after following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 270 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than 180 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time Closing Date or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the written request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement, provided that the Company shall not be required to file more than one post-effective amendment to the Shelf Registration Statement and include during any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder90-day period; providedprovided further, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer has is not been consummated within 360 completed (or, if required pursuant to Section 2(b), the Shelf Registration Statement is not declared effective) on or before the date that is 270 days after the Closing Date, Date or (ii) if a Shelf any Exchange Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein), in each case for more than 60 a period in excess of 45 days in the aggregate (whether or not consecutive) in any consecutive twelve12-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through and (iiiii), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation Period, at a per annum rate of 0.75% for the third 90 days of the Exchange Offer in Registration Default Period and at a per annum rate of 1.00% thereafter for the case remaining portion of a Shelf the Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodDefault Period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Titan Distribution, Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing DateAct. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse)(4).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 180 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 180 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective).
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Exchange Offer has not been consummated completed within 360 180 days after the Closing Date, Date or (iiii)(x) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, (if required) has not become or been declared effective within the later of 90 days after such Shelf Registration Statement filing obligation arises and 180 days after the Closing Date or (iiiy) if any Exchange Registration Statement or Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through and (iiiii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodmay exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees Guarantee under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
(f) The Company shall use its best efforts to cause all Exchange Securities or Securities that have been registered under the Securities Act, as applicable to have the same CUSIP number as the Existing Exchange Securities.
Appears in 1 contract
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, as soon as practicable, but no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “"Exchange Registration Statement”, ," and such offer, the “"Exchange Offer”") any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “"Exchange Securities”"). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 240 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its all commercially reasonable efforts to commence (A) complete the Exchange Offer promptly promptly, but no later than 40 business days after the such Exchange Registration Statement becomes has become effective, hold the Exchange Offer open for the period required by applicable law and (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and B) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been "completed" only if the debt securities and the related guarantees received by holders other than Restricted Holders in the Exchange Offer 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company commences having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted Securities for all the Registrable Securities validly that have been properly tendered in accordance with and not withdrawn before the terms expiration of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “"Resale Period”") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationshereof.
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing laws or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 240 days following the Closing Date, Date or (iii) any Initial Purchaser so requests with respect a holder notifies AAC prior to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th business day following the consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such to any holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsSecurities, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than the later of 60 days after the time such obligation to file arises or 180 days following the Closing Date, a “"shelf” " registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “"Shelf Registration” " and such registration statement, the “"Shelf Registration Statement”"). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement arises is filed and to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing HolderHolder who agrees to be bound by all of the provisions of this Agreement applicable to such holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; Statement, provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company and the Guarantors in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. .
(c) Notwithstanding the foregoing, the Company may suspend Company, upon advising the availability Purchasers in writing, may, pursuant to the advice of outside counsel to the Company, delay the filing or effectiveness of any Exchange Registration Statement or Shelf Registration Statement (xif not filed or effective, as applicable) or suspend, or otherwise fail to maintain, the effectiveness thereof, for up a period (the "Blackout Period") not to exceed an aggregate of 60 days in any twelve consecutive twelve-month period if in the event that (i1) such action is required by applicable law or (ii) such action is taken by the Board of Directors of the Company reasonably and in good faith and for valid business reasons (not including avoidance determines that the premature disclosure of a material event at such time would have a material adverse effect on the Company’s obligations hereunder's business, operations or prospects or (2) as determined by the board disclosure otherwise relates to a material business transaction which has not been publicly disclosed and the Board of directors Directors of the Company or an authorized committee thereofreasonably and in good faith determines that any such disclosure would jeopardize the success of such transaction; provided, including that, upon the acquisition or divestiture termination of assetssuch Blackout Period, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company promptly shall promptly notify advise the Electing Holders when the Shelf Registration Statement may once again be used or is effectivePurchasers that such Blackout Period has been terminated.
(cd) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively (each, an "Effectiveness Target Date"), or (iii) the Exchange Offer has not been consummated within 360 40 business days after the Closing Date, or Effectiveness Target Date relating to the Exchange Offer (ii) if a Shelf Registration Statement the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effectiveeffective but shall thereafter, and during if on or after the period date on which such registration statement is required to become or declared effective pursuant to Section 2(a) or 2(b) hereof, either be withdrawn by the Company and or shall become subject to an effective stop order issued pursuant to Section 8(d) of the Guarantors are required to use their respective Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein) without the Company proceeding promptly, with all commercially reasonable efforts to cause the Shelf Registration Statement to remain effectivefile, (x) the Company shall and have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be declared effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “"Registration Default” " and each period during which a Registration Default has occurred and is continuing, a “"Registration Default Period”"), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“"Special Interest”"), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% $.05 per week per $1,000 principal amount of Notes for the first 90 days of the Registration Default Period, which rate and the amount of Special Interest shall increase by an additional 0.25% during $.05 per week per $1,000 principal amount of Notes with respect to each subsequent 90-day periodperiod until all Registration Defaults have been cured, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual amount of Special Interest will cease. A of $.25 per week per $1,000 principal amount of Notes for the remaining portion of the Registration Default under clause Period. Notwithstanding the foregoing, (ii1) or the amount of Special Interest payable shall not increase because more than one Registration Default has occurred and is pending and (iii2) will be deemed cured upon consummation a Holder of Registrable Securities that is not entitled to the benefits of the Exchange Offer in the case of a Shelf Registration Statement required (e.g., such Holder has not elected to include information) shall not be filed due entitled to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above Special Interest with respect to a Registration DefaultsDefault that pertains to the Shelf Registration Statement.
(e) The Company shall take, and shall cause the Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (American Achievement Corp)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts agrees to file under the Securities Act Act, as soon as practicable, but no later than 90 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the GuarantorsCompany, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively Securitiesthey are designed to replace (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter collectively called “Exchange Securities”). The Company and the Guarantors agree agrees to use their respective its commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 as soon as practicable, but no later than 180 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence and complete the Exchange Offer promptly promptly, but not later than 45 days after the Exchange Registration Statement becomes such registration statement has become effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the 30 days andexchange Exchange Securities for all Registrable Securities that have been validly tendered and not validly withdrawn on or prior to the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only if the Company commences debt securitiesreceived in exchange for Registrable Securities by holders that participate in the Exchange Offer, other than Restricted Holders, 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. The Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Company will be entitled having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to close the Exchange Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been validly tendered and not validly withdrawn before the expiration of the Exchange Offer, which shall be on a date that is no earlier than 30 business days after days, and no later than 45 days, following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales as are permitted by the Securities Act, and the Commission, including its policies and procedures, by any holder of Exchange Securities that is a broker-dealer broker‑dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vie) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) hereof. If (i) on or prior to the time the Exchange Offer is consummated completed existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees debt securities received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 225 days following the Closing Date, Date or (iii) if any Initial Purchaser so requests with respect holder shall notify the Company, in writing, prior to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation completion of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, was prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsOffer, the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly soon as reasonably practicable, but no later than 30 days after the earlier of: (x) the occurrence in any of the events in Section 2(b)(i) or (ii) above, or (y) the date upon which the Company receives the written notice specified in Section 2(b)(iii) above, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree agrees to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 no later than225 days after following the date on which the obligation Closing Date and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; outstanding, provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take any action reasonably necessary to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunderStatement; provided, however, that (i) nothing in this clause Clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhereof. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company has not filed the Exchange Registration Statement or Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 45 days after the Closing Date, or (ii) if a Shelf initial effective date of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or Securities Act suspending the effectiveness of such registration statement (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereofexcept as specifically permitted herein) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on the Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless thereafter for the remaining portion of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration DefaultsDefault Period; provided, however, the accrual of Company shall not be obligated to pay any Special Interest will cease. A if the Registration Default under clause (iiis attributable to the Company’s compliance with Section 2(b)(y), Section 3(d)(iii), Section 3(d)(x) or Section 3(f); provided further, that the Company shall in no event be required to pay Special Interest pursuant to this Section 2 for more than one Registration Default at a time. Notwithstanding anything to the contrary set forth herein, (iii1) will be deemed cured upon consummation filing of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of a Shelf Registration Statement required to be filed due to a failure to consummate (i) above, (2) upon the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence effectiveness of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by (and/or, if applicable, the Company Shelf Registration Statement), in the case of (ii) above, (3) upon completion of the Exchange Offer, in the case of (iii) above, or ceases (4) upon the filing of a post-effective amendment to be effective such the Exchange Registration Statement (and/or, if applicable, the Shelf Registration Statement) or an additional Registration Statement that any broker-dealer that (i) receives Exchange Securities in causes the Exchange Offer and Registration Statement (ii) is subject to prospectus delivery requirements cannot fulfill such requirementsand/or, if applicable, the Company shall pay liquidated damages Shelf Registration Statement) to such broker-dealers again be declared effective in an amount calculated in a manner consistent with that specified above the case of (iv) above, the Special Interest payable with respect to Registration Defaults.
the Transfer Restricted Securities as a result of such clause (ei), (ii), (iii) or (iv), as applicable, shall cease. The Company and the Guarantors shall take all commercially reasonable actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) . Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Clorox Co /De/)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, practicable but in any event within 90 days after the Closing Date a “shelf” shelf registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders Holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”)Commission. The Company and the Guarantors agree agrees to use their respective commercially its reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 150 days after the date on which the obligation Closing Date and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period ending on until the earlier of (i) the first second anniversary of the Effective Time Closing Date or (ii) such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by outstanding (the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) "Effective Period"). None of the Company pursuant Company's securityholders (other than Holders of Registrable Securities) shall have the right to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder include any of the Company's securities in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and Statement.
(yb) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registrationthe Exchange Act, and the Company agrees to furnish to each Electing Holder the Holders of the Registrable Securities copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding If the foregoingShelf Registration Statement, as amended or supplemented from time to time, ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Securities registered thereunder shall have been sold pursuant thereto or shall have otherwise ceased to be Registrable Securities), the Company may suspend shall use its reasonable best efforts to obtain the availability prompt withdrawal of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by order suspending the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee effectiveness thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders Each Holder of Registrable Securities agrees that if such Holder wishes to sell Registrable Securities pursuant to the Shelf Registration Statement and related Prospectus, it will suffer damages do so only in accordance with this Section 2(c) and Section 3(b). Each Holder of Registrable Securities wishing to sell Registrable Securities pursuant to the Shelf Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire to the Company at least three (3) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration Statement. From and after the date the Shelf Registration Statement is declared effective, the Company shall, as promptly as is practicable after the date a Notice and Questionnaire is delivered, and in any event within five (5) Business Days after such date, (i) if required by applicable law, file with the Commission a post-effective amendment to the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling security holder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use its reasonable efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable; (ii) provide such Holder copies of any documents filed pursuant to Section 2(c)(i); and (iii) notify such Holder as promptly as practicable after the Guarantors fail effectiveness under the Securities Act of any post-effective amendment filed pursuant to fulfill their obligations Section 2(c)(i); provided that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(b). Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling securityholder in any Shelf Registration Statement or related Prospectus; provided, however, that any Holder that becomes a Notice Holder pursuant to the provisions of this Section 2 and that it would 2(c) (whether or not such Holder was a Notice Holder at the time the Shelf Registration Statement was declared effective) shall be feasible to ascertain named as a selling securityholder in the extent Shelf Registration Statement or related Prospectus in accordance with the requirements of this Section 2(c).
(d) If any of the following events (any such event a "Registration Default") shall occur, then liquidated damages with precision. In (the event that "Additional Amounts") shall become payable in respect of the Securities as follows:
(i) Exchange Offer has if the Shelf Registration Statement is not been consummated filed with the Commission within 360 90 days following the Closing Date, then commencing on the 91st day after the Closing Date, or Additional Amounts shall accrue on the Accreted Value of any outstanding Notes that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days following such 91st day and at a rate of 0.5% per annum thereafter; or
(ii) if a the Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective by the Commission within 150 days following the Closing Date, then commencing on or before the 151st day after the Closing Date, Additional Amounts shall accrue on the Accreted Value of any outstanding Notes that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days following such 151st day and at a rate of 0.5% per annum thereafter; or
(iii) if the Company has failed to perform its obligations set forth in Section 2(c) hereof within the time periods required therein, then commencing on the first day after the date by which the Company was required to perform such obligations, Additional Amounts shall accrue on the Accreted Value of any outstanding Notes that are Registrable Securities and the Applicable Conversion Price of any outstanding shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days and at a rate of 0.5% per annum thereafter;
(iv) if the Shelf Registration Statement has been declared effective but such Shelf Registration Statement ceases to be effective at any time during the Effective Period (other than during a Deferral Period), then commencing on the day such Shelf Registration Statement ceases to be effective, Additional Amounts shall accrue on the Accreted Value of any outstanding Notes that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for the first 90 days following such date on which the obligation to file the Shelf Registration Statement arises, or ceases to be effective and at a rate of 0.5% per annum thereafter; or
(iiiv) if the aggregate duration of Deferral Periods in any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during period exceeds the number of days permitted in respect of such period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b3(b) hereof hereof, then commencing on the day the aggregate duration of Deferral Periods in any period exceeds the number of days permitted in respect of such period, Additional Amounts shall accrue on the Accreted Value of any outstanding Notes that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities at a rate of 0.25% per annum for more than 60 the first 90 days and at a rate of 0.5% per annum thereafter; provided, however, that the Additional Amounts rate on the Securities shall not exceed in the aggregate in 0.5% per annum and shall not be payable under more than one clause above for any consecutive twelve-month given period of time, except that if Additional Amounts would be payable under more than one clause above, but at a rate of 0.25% under one clause and at a rate of 0.5% under the other, then the Additional Amount rate shall be continuing to suspend the availability higher rate of 0.5% per annum; provided further, however, that (1) upon the filing of the Shelf Registration Statement or (yin the case of clause (i) above), (2) upon the effectiveness of the Shelf Registration Statement (in the case of clause (ii) above), (3) upon the Company's performing its obligations set forth in Sections 2(b) and 2(c) hereof within the time periods required therein (in the case of clause (iii) above), (4) upon the effectiveness of the Shelf Registration Statement which had ceased to remain effective (in the case of clause (iv) above), (5) upon the termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods in a period set forth in Section 3(b) to be exceeded (in the case of clause (v) above) or (6) upon the termination of certain transfer restrictions on the Securities as a result of the application of Rule 144(k) or any successor provision, Additional Amounts on the Securities as a result of such clause, as the case may be, shall cease to accrue. Additional Amounts on the Securities, if any, will be effective payable in cash on December 14 and June 14 of each year (other than by action the "Additional Amounts Payment Date") to holders of record of outstanding Registrable Securities on each preceding November 30 and May 31. The date of determination of the Company pursuant Accreted Value of any outstanding Notes that are Registrable Securities and the Applicable Conversion Price of any outstanding Shares that are Registrable Securities shall be the Business Day immediately preceding the Additional Amounts Payment Date; provided that in the case of an event of the type described in clause (iii) above, such Additional Amounts shall be paid only to the second paragraph of Holders that have delivered Notice and Questionnaires that caused the Company to incur the obligations set forth in Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii2(c), a “Registration Default” and each period during the non-performance of which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for the basis of such Registration Default, special interest (“Special Interest”), in addition ; provided further that any Additional Amounts accrued with respect to the Base Interest, shall accrue any Notes or portion thereof called for redemption on Registrable Securities for a redemption date or converted into Shares on a conversion date prior to the Registration Default Period shall, in any such event, be paid instead to the Holder who submitted such Notes or portion thereof for redemption or conversion on the applicable redemption date or conversion date, as the case may be, on such date (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate or promptly following the conversion date, in the case of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuingconversion). Following the cure of all Registration DefaultsDefaults requiring the payment of Additional Amounts by the Company to the Holders of Registrable Securities pursuant to this Section, the accrual of Special Interest Additional Amounts will cease. A cease (without in any way limiting the effect of any subsequent Registration Default under clause (ii) or (iii) will requiring the payment of Additional Amounts by the Company). The Trustee shall be deemed cured upon consummation entitled, on behalf of Holders of Securities, to seek any available remedy for the enforcement of this Agreement, including for the payment of any Additional Amounts. Notwithstanding the foregoing, the parties agree that the sole monetary damages payable for a violation of the Exchange Offer in the case terms of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above this Agreement with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein which liquidated damages are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time expressly provided shall be deemed as set forth in this Section 2(d). Nothing shall preclude a Notice Holder or Holder of Registrable Securities from pursuing or obtaining specific performance or other equitable relief with respect to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such timethis Agreement.
Appears in 1 contract
Samples: Registration Rights Agreement (Interpublic Group of Companies Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company Company, Parent and the Subsidiary Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 120 days after the Closing Date, a registration statement relating to an offer to exchange a registration statement (such registration statement, the “Exchange Registration Statement”, and such offer, ) relating to an offer (the “Exchange Offer”) any and all of the Securities for a to issue debt securities (in like aggregate principal amount of debt securities as the Securities) to be issued by the Company and guaranteed by Parent and the Subsidiary Guarantors, which debt securities and Guarantees guarantee are substantially identical to the Securities and the related GuaranteesGuarantee, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company Company, Parent and the Subsidiary Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 no later than 210 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantee received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company Company, Parent and the Guarantors Subsidiary Guarantor agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of businessSubsections 6(a), (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Actc), (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliatesd) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantee received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 210 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within Company, then the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, the Company Parent and the Subsidiary Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableno later than 30 days after the time such obligation to file arises (but no earlier than 120 days after the Closing Date), a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company Company, Parent and the Subsidiary Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within no later than 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises (but no earlier than 210 days after the Closing Date); provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company, Parent and the Subsidiary Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company, Parent and the Subsidiary Guarantors agree to use their respective all commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first second anniversary of the Effective Time or such shorter period that will terminate when all the time as there are no longer any Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company, Parent and (y) the Subsidiary Guarantors agree, after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunder; identifying such holder), provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b), as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) Statement, or extend the time period in which it is required to file the Shelf Registration Statement, for up to an aggregate of 30 consecutive days and up to 60 days in the aggregate, in each case in any consecutive twelve12-month period (a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance Board of the Company’s obligations hereunder) as determined by the board of directors Directors of the Company or an authorized committee thereof, including determines that there is a valid business purpose for suspension of the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company, Parent and the Subsidiary Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless for the second 90 days of the number Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period. Special Interest shall accrue and be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time periodmay exist at such time.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the The Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company take, and shall cause Parent and the Subsidiary Guarantors shall take to take, all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) any Exchange Registration Statement or 2(b) hereofShelf Registration Statement, as applicable.
(fe) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time time; and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Koppers Holdings Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable best efforts to file under the Securities Act a registration statement as soon as practicable after the Closing Date, but in no event later than 67 days after such date, an Exchange Offer Registration Statement relating to an offer by the Company and the Guarantors to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “"Exchange Offer”")
(i) any and all of the Securities Notes for a like aggregate principal amount of debt securities notes issued by the Company Company, which notes are identical in all material respects to the Notes (the "Exchange Notes"), except that the Exchange Notes have been registered pursuant to an effective registration statement under the Securities Act, do not contain restrictions on transfers (except as they may be held by Restricted Holders) and guaranteed provide for the additional interest contemplated in Section 2(d) below for any periods before such exchange and (ii) any and all of the Guarantees for like guarantees by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities Guarantees (the "Exchange Guarantees," and together with the related GuaranteesExchange Notes, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), "Exchange Securities") except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”)transfers. The Company and the Guarantors agree to use their respective commercially reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 270 as soon as practicable after the filing of the Exchange Offer Registration Statement but in no event later than 127 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer and other rules and regulations under the Exchange Act. The Company and the Guarantors further agrees agree to use its commercially reasonable their best efforts to commence and consummate the Exchange Offer promptly after the Exchange Offer Registration Statement becomes has become effective, hold the Exchange Offer open for the period not less than 20 Business Days (or longer, if required by applicable law (including pursuant to any applicable interpretation by law) after the staff date notice of the Commission), but in any event for at least 10 business days, Exchange Offer has been mailed to Holders and exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to the expiration of the Exchange OfferOffer and to consummate such Exchange Offer within 210 days after November 8, 2002. If 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 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 the States of the United States of America. The Exchange Offer shall be deemed to have been completed upon the Company commences and the Guarantors having exchanged, pursuant to the Exchange Offer, the Company will be entitled Exchange Securities for all outstanding Securities, pursuant to close the Exchange Offer 30 business days after Offer, properly tendered and not withdrawn before the commencement thereof expiration of the Exchange Offer, which shall be on a date that is not less than 20 Business Days (or at the end of such shorter period permitted longer, if required by applicable law), provided that ) following the Company has accepted all the Registrable Securities validly tendered in accordance with the terms commencement of the Exchange Offer. The Company and the Guarantors agree shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(xi) that the Exchange Offer is being made pursuant to include this Agreement and that all Registrable Securities validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (each such date being an "Exchange Date");
(iii) that a Holder electing to have Registrable Securities exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Securities, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice prior to the close of business on the last Exchange Date (the "Offer Termination Date"); and
(iv) that a Holder will be entitled to withdraw his election, not later than the close of business on the Offer Termination Date, by sending to the institution and at the address 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. As soon as practicable after the Offer Termination Date, the Company and the Guarantors shall:
(A) accept for exchange Registrable Securities or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer; and
(B) 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 the Guarantors and issue, and cause the Trustee to promptly authenticate and mail to each Holder who has properly tendered and not withdrawn Registrable Securities pursuant to the Exchange Offer, an Exchange Security in aggregate principal amount equal to the aggregate principal amount of the Registrable Securities surrendered by such Holder. The Company shall use its 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 applicable law or any applicable interpretation of the staff of the Commission. The Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable SecuritiesOffer. Each holder Holder of Securities participating in the Exchange Offer shall be required to represent to the Company and the Guarantors that at the time of the consummation of the Exchange Offer (i) such Holder is not an "affiliate" of the Company or any Guarantor within the meaning of Rule 405 under the Securities Act, (ii) the Exchange Securities received being acquired by such holder will be acquired it pursuant to the Exchange Offer are being obtained in the ordinary course of business, (ii) at the time business of the commencement of the person receiving such Exchange Offer Securities and (iii) such holder Holder has no arrangements arrangement or understanding with any person Person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if . If such holder Holder is a brokerParticipating Broker-dealer, Dealer that it will receive Exchange Securities for its own account in exchange for the Registrable Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and activities, it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationsSecurities.
(b) If In the event that (i) on due to a change in applicable law or prior current interpretations by the Commission, the Company and the Guarantors are not permitted to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in effect the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under all of the Securities ActSecurities, (ii) the Exchange Offer has for all of the Securities is not been completed for any other reason consummated within 360 210 days following the Closing Dateafter November 8, 2002, or (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following Holder shall, within 30 days after consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall beOffer, and shall notify the Company and the Guarantors that such holder is, Holder (x) is prohibited by applicable law or Commission policy from participating in the Exchange Offer or such holder Offer, (y) may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the prospectus Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such holder Holder or (other than in either case (xz) due solely to is a broker-dealer and holds Securities acquired directly from the status of such holder as Company and Guarantors or an affiliate "affiliate" of the Company within the meaning of the Securities Act or (y) due any Guarantor, then in addition to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, or in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under or (iv) at the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all request of the Registrable Securities (or in the case any of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” Company and such the Guarantors will be required to file a "shelf" registration statement, the “statement (a "Shelf Registration Statement”") covering resales (a) by the Holders of Registrable Securities in the event the Company and the Guarantors are not permitted to effect the Exchange Offer pursuant to the foregoing clause (i) or the Exchange Offer is not consummated within 210 days after November 8, 2002 pursuant to the foregoing clauses (i) or (ii) or (b) by the Holders of Registrable Securities with respect to which the Company and the Guarantors receive notice pursuant to the foregoing clauses (iii) or (iv). The Trustee will promptly deliver to the Holders written notice that the Company and the Guarantors will be complying with the provisions of this Section 2(b). The Company and the Guarantors agree to use their respective commercially reasonable best efforts (x) to cause the Shelf Registration Statement to become or be declared effective within 90 days after the date on which the obligation and to file keep such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain continuously effective for a period of time ending on the earlier of the first second anniversary of the Effective Time (the "Effective Period") or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or are distributed Statement. The Company and the Guarantors shall, if they file a Shelf Registration Statement, provide to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) each Holder of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in Registrable Securities copies of the Prospectus contained therein and notify each such Holder when the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarterhas become effective. The Company and the Guarantors further agrees agree to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registrationregistrations, and the Company agrees and the Guarantors agree to furnish to each Electing Holder the Holders of the Registrable Securities copies of any such supplement or amendment prior to its being used or promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that Guarantors shall, jointly and severally, pay all Registration Expenses in connection with the holders registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Securities will suffer damages if pursuant to the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Date, Registration Statement or (ii) if a Shelf Registration Statement, as the case may be.
(d) An Exchange Offer Registration Statement required pursuant to be filed under Section 2(b2(a) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the a Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in will not be deemed to have become effective unless it has been declared effective by the aggregate in Commission; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities pursuant to an Exchange Offer Registration Statement or a Shelf Registration Statement is interfered with by any consecutive twelve-month stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Registration Statement will be deemed not to have been effective during the period of such interference until the offering of Registrable Securities pursuant to such Registration Statement may legally resume. If the Company and be continuing the Guarantors shall fail to suspend comply with this Agreement or if the availability of Exchange Offer Registration Statement or the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease fails to be become effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each any such event referred to in clauses (i) through (iii)event, a “"Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”"), then, as liquidated damages damages, registration default interest (the "Penalty Interest"), shall become payable in respect of the Notes as follows:
(i) (A) if an Exchange Offer Registration Statement or, in the event of a change in applicable law or due to current interpretations by the Commission the Company and the Guarantors are not permitted to effect the Exchange Offer, a Shelf Registration Statement, is not filed within 120 days following November 8, 2002, (B) in the event that within the 30 days after consummation of the Exchange Offer, any Holder of the Registrable Securities shall notify the Company and the Guarantors that such Holder (x) is prohibited by applicable law or Commission policy from participating in the Exchange Offer, (y) may not resell 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 (z) is a broker-dealer and holds Securities acquired directly from the Company and the Guarantors or an "affiliate" of the Company or any Guarantor and a Shelf Registration DefaultStatement is not filed within 120 days after such notice or (C) upon the request of an Initial Purchaser, special interest a Shelf Registration Statement is not filed within 120 days after such request, then commencing on either the 121st day after November 8, 2002 or the expiration of either of the 120-day time periods set forth in clauses (“Special Interest”B) and (C) above (either, a "Prescribed Time Period"), in addition to as the Base Interestcase may be, Penalty Interest shall accrue be accrued on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured Notes over and above the stated payment rates thereon at a rate of .50% per annum rate of 0.25% for the first 90 days immediately following either the 120th day after November 8, 2002 or the expiration of the Registration Default Prescribed Time Period, which as the case may be, such Penalty Interest rate shall increase increasing by an additional 0.25.25% during per annum at the beginning of each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause ;
(ii) if an Exchange Offer Registration Statement or a Shelf Registration Statement is filed pursuant to clause (i) of the preceding full paragraph and is not declared effective within either 180 days following November 8, 2002 or 60 days following the expiration of the Prescribed Time Period, as the case may be, then commencing on the 181st day after either November 8, 2002 or the 61st day following the expiration of the Prescribed Time Period, as the case may be, Penalty Interest shall be accrued on the Notes over and above the accrued stated payment rates thereon at a rate of .50% per annum for the first 90 days immediately following the 181st day after either November 8, 2002 or the 61st day after the expiration of the Prescribed Time Period, as the case may be, such Penalty Interest rate increasing by an additional .25% per annum at the beginning of each subsequent 90-day period; and
(iii) will be deemed cured upon consummation if either (A) the Company and the Guarantors have not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to 210 days after November 8, 2002, or (B) if applicable, a Shelf Registration Statement has been declared effective and such Shelf Registration Statement ceases to be effective prior to the end of the Effective Period, or such shorter period that will terminate when all of the Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement, then, subject to certain exceptions, Penalty Interest shall be accrued on the Notes over and above the stated payment rates at a rate of .50% per annum for the first 90 days immediately following the (x) the 211th day after November 8, 2002 in the case of (A) above or (y) the day such Shelf Registration Statement ceases to be effective in the case of (B) above, such Penalty Interest rate increasing by an additional .25% per annum at the beginning of each subsequent 90-day period; provided, however, that the Penalty Interest rate on any of the applicable Notes may not exceed 1.5% per annum; and provided further, that (1) upon the filing of the Exchange Offer Registration Statement or a Shelf Registration Statement required to be filed due to a failure to consummate (in the case of (i) above), (2) upon the effectiveness of the Exchange Offer within the required time period.
Registration Statement or a Shelf Registration Statement (d) If during the 90 day period referenced in the final sentence case of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirementsabove), the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.or
Appears in 1 contract
Samples: Registration Rights Agreement (Sinclair Broadcast Group Inc)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain restrictions on transfer or provisions for the additional interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within 270 days after the Closing Initial Issue Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Company further agrees to use its commercially reasonable efforts to commence the Exchange Offer promptly after the Exchange Registration Statement becomes effective, hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation by the staff of the Commission), but in any event for at least 10 business days, and exchange the Exchange Securities for all Registrable Securities that have been validly tendered and not withdrawn on or prior to the expiration of the Exchange Offer. If the Company commences the Exchange Offer, the Company will be entitled to close the Exchange Offer 30 business days after the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent to the Company that (i) any Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company or any of its affiliates) and that it will deliver a prospectus in connection with any resale of such Exchange Securities and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representations.
(b) If (i) on or prior to the time the Exchange Offer is consummated existing Commission interpretations are changed such that the Exchange Securities or the related Guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Exchange Offer has not been completed within 360 days following the Closing Initial Issue Date, (iii) any Initial Purchaser so requests with respect to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange Offer and held by it following consummation of the Exchange Offer or (iv) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, prohibited by law or Commission policy from participating in the Exchange Offer or such holder may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Registration Statement is not available for such resales by such holder (other than in either case (x) due solely to the status of such holder as an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requests, the Company and the Guarantors shall, in lieu of (or, in the case of clauses (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicable, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers), pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective commercially reasonable efforts (x) to cause the Shelf Registration Statement to become effective within 90 days after the date on which the obligation to file such Shelf Registration Statement arises and to use their respective commercially reasonable efforts to cause such Shelf Registration Statement to remain effective for a period ending on the earlier of the first anniversary of the Effective Time 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 distributed to the public pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y) after the Effective Time of the Shelf Registration Statement, promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder to take any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement and include any disclosure necessary or advisable in order to comply with the Securities Act or rules and regulations thereunder; provided, however, that (i) nothing in this clause (y) shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter. The Company further agrees to supplement or make amendments to the Shelf Registration Statement, as and when 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 rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoing, the Company may suspend the availability of any Shelf Registration Statement (x) for up to an aggregate of 60 days in any consecutive twelve-month period if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange Offer; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) Exchange Offer has not been consummated within 360 days after the Closing Initial Issue Date, or (ii) if a Shelf Registration Statement required to be filed under Section 2(b) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(b) hereof is filed and declared effective, and during the period the Company and the Guarantors are required to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement pursuant to Section 2(b) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Shelf Registration Statement or (y) the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph of Section 2(b) hereof) without being replaced within 90 days by a shelf registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iii), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, special interest (“Special Interest”), in addition to the Base Interest, shall accrue on Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Hd Supply, Inc.)
Registration Under the Securities Act. (a) Except as set forth in Section 2(b) below, the Company and the Guarantors agree to use their respective commercially reasonable efforts to file under the Securities Act Act, no later than 180 days after the Closing Date, a registration statement relating to an offer to exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and Guarantees guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture ActIndenture), except that they have been registered pursuant to an effective registration statement under the Securities Act Act, are not subject to transfer restrictions and do not contain restrictions on transfer or provisions for the additional interest Special Interest contemplated in Section 2(c) below or the liquidated damages provided in Section 2(d) below (such new debt securities hereinafter called “Exchange Securities”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts to cause the Exchange Registration Statement to become effective under the Securities Act within no later than 270 days after the Closing Date. The Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Unless the Exchange Offer would not be permitted by applicable law or Commission policy, the Company further agrees to use its all commercially reasonable efforts to (i) commence the Exchange Offer promptly after (but no later than 10 Business Days) following the Effective Time of such Exchange Registration Statement becomes effectiveStatement, (ii) hold the Exchange Offer open for the period required by applicable law (including pursuant to any applicable interpretation at least 20 Business Days in accordance with Regulation 14E promulgated by the staff of Commission under the Commission), but in any event for at least 10 business days, Exchange Act and (iii) exchange the Exchange Securities for all Registrable Securities that have been validly properly tendered and not withdrawn on or prior to before the expiration of the Exchange Offer, promptly following the expiration of the Exchange Offer. If The Exchange Offer will be deemed to have been “completed” only (i) if the debt securities and related guarantees received by holders other than Restricted Holders in the Exchange Offer 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 and (ii) upon the Company commences having exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the Company will be entitled to close expiration of the Exchange Offer Offer, which shall be on a date that is at least 20 and not more than 30 business days after Business Days following the commencement thereof (or at the end of such shorter period permitted by applicable law), provided that the Company has accepted all the Registrable Securities validly tendered in accordance with the terms of the Exchange Offer. The Company and the Guarantors agree (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 90th 180th day after the Exchange Offer Registration Statement has been completed declared effective or such time as such broker-dealers no longer own any Registrable Securities. Each holder participating in the Exchange Offer shall be required to represent Securities Notwithstanding anything to the Company that (icontrary in this Section 2(a) or elsewhere in this Agreement, upon notice to any holder of Exchange Securities received by such holder will be acquired in the ordinary course of business, (ii) at the time of the commencement of the Exchange Offer such holder has no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of the Company, or if it is such an “affiliate,” it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities, (v) if such holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities (other than Securities acquired directly from the Company may suspend the use or any of its affiliates) and that it will deliver a prospectus in connection with any resale the effectiveness of such Exchange Registration Statement, or extend the time period in which it is required to file the Exchange Registration Statement, for up to 45 consecutive days and up to 90 days in the aggregate, in each case in any 12-month period (an “Exchange Registration Suspension Period”) if the Company determines that there is a valid business purpose for suspension of the Exchange Registration Statement; provided that the Company shall promptly notify any holder of Exchange Securities that is a broker-dealer when the Exchange Registration Statement may once again be used or is effective. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and (vi) such holder is not acting on behalf of any person who could not truthfully make the foregoing representationse).
(b) If (i) on or prior to the time the Exchange Offer is consummated completed existing law or Commission interpretations are changed such that the Exchange Securities debt securities or the related Guarantees guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration Statement is not within 270 days following the Closing Date and the Exchange Offer has not been completed within 360 days following the Closing Date, 30 Business Days of such Effective Time or (iii) any Initial Purchaser so requests with respect to holder of Registrable Securities not eligible notifies the Company prior to be exchanged for Exchange Securities in the Exchange Offer and held by it 20th Business Day following consummation the completion of the Exchange Offer or that: (ivA) any holder (other than an Initial Purchaser) shall be, and shall notify the Company that such holder is, it is prohibited by law or Commission policy from participating in the Exchange Offer or such holder Offer, (B) it may not resell the Exchange Securities acquired in the Exchange Offer to the public without delivering a prospectus and the prospectus supplement contained in the Exchange Registration Statement is not appropriate or available for such resales by such holder or (other than in either case (xC) due solely to it is a broker-dealer and owns Securities acquired directly from the status of such holder as Company or an affiliate of the Company within the meaning of the Securities Act or (y) due to such holder’s inability to make the representations set forth in the second paragraph of Section 2(a) hereof) and any such holder so requestsCompany, then the Company and the Guarantors shall, in lieu of (or, in the case of clauses clause (iii) and (iv), in addition to) conducting the Exchange Offer contemplated by Section 2(a), use their respective commercially reasonable efforts to file under the Securities Act as promptly as reasonably practicableon or prior to the date that is the later of (x) 30 days after the time such obligation to file arises and (y) 180 days after the Closing Date, a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities (or in the case of clause (iii), the Registrable Securities held by the Initial Purchasers)Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”). The Company and the Guarantors agree to use their respective all commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective within on or prior to the date that is the later of (x) 90 days after the date on which the obligation to file such Shelf Registration Statement filing obligation arises and (y) 270 days after the Closing Date; provided, that if at any time the Company is or becomes a “well-known seasoned issuer” (as defined in Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule 405), then the Company and the Guarantors shall file the Shelf Registration Statement in the form of an automatic shelf registration statement as provided in Rule 405. The Company and the Guarantors agree to use their respective commercially reasonable efforts to cause keep such Shelf Registration Statement to remain continuously effective for a period ending on the earlier of the first anniversary of time when the Effective Time 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 distributed to the public freely tradeable pursuant to Rule 144 or would be eligible to be sold by a person that is not an “affiliate” (such time as defined in Rule 144) of the Company pursuant to Rule 144 without volume restriction; provided, however, that there are no longer any Registrable Securities outstanding. No holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Company and the Guarantors agree, and (y) after the Effective Time of the Shelf Registration Statement, Statement and promptly upon the request of any holder of Registrable Securities that is not then an Electing Holder Holder, to take use all commercially reasonable efforts to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities, including, without limitation, any action reasonably necessary to identify such holder as a selling securityholder in the Shelf Registration Statement (whether by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and include any disclosure necessary or advisable in order to comply with 424(b) under the Securities Act or rules and regulations thereunderidentifying such holder); provided, however, that (i) nothing in this clause (y) sentence shall relieve any such holder of the obligation to return a completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(iii) hereof and (ii) the Company shall not be required to take any such action with respect to any such holders more than once every quarter). The Company further agrees to supplement or make amendments Notwithstanding anything to the Shelf Registration Statementcontrary in this Section 2(b) or elsewhere in this Agreement, as and when required by the rules, regulations or instructions applicable upon notice to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Company agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly following its filing with the Commission. Notwithstanding the foregoingHolders, the Company may suspend the availability use or the effectiveness of any such Shelf Registration Statement (x) Statement, or extend the time period in which it is required to file the Shelf Registration Statement, for up to an aggregate of 60 45 consecutive days and up to 90 days in the aggregate, in each case in any consecutive twelve12-month period (a “Suspension Period”) if (i) such action is required by applicable law or (ii) such action is taken by the Company in good faith and for determines that there is a valid business reasons (not including avoidance purpose for suspension of the Company’s obligations hereunder) as determined by the board of directors of the Company or an authorized committee thereof, including the acquisition or divestiture of assets, or (y) with respect to a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period, if such action occurs following the consummation of the Exchange OfferStatement; provided that the Company shall promptly notify the Electing Holders when the Shelf Registration Statement may once again be used or is effective.
(c) The Company and the Initial Purchasers agree that the holders of Registrable Securities will suffer damages if the Company and the Guarantors 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. In the event that (i) the Company and the Guarantors have not filed the Exchange Registration Statement or the Shelf Registration Statement on or before the date on which such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or (ii) such Exchange Registration Statement or Shelf Registration Statement has not become effective or been declared effective by the Commission on or before the date on which such registration statement is required to become or be declared effective pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been consummated completed within 360 days 30 Business Days after the Closing Date, or (ii) if a Shelf Effective Time of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is then required to be filed under Section 2(bmade) hereof is not declared effective on or before 90 days after the date on which the obligation to file the Shelf (iv) any Exchange Registration Statement arises, or (iii) if any Shelf Registration Statement required by Section 2(a) or Section 2(b) hereof is filed and declared effective, and during the period effective but shall thereafter either be withdrawn by the Company and the Guarantors are required or shall become subject to use their respective commercially reasonable efforts to cause the Shelf Registration Statement to remain effective, (x) the Company shall have suspended the Shelf Registration Statement an effective stop order issued pursuant to Section 2(b8(d) hereof for more than 60 days in the aggregate in any consecutive twelve-month period and be continuing to suspend the availability of the Securities Act suspending the effectiveness of such registration statement (except as specifically permitted herein, including, with respect to any Exchange Registration Statement, during any applicable Exchange Registration Suspension Period, or with respect to any Shelf Registration Statement or (y) Statement, during any applicable Suspension Period in accordance with the Shelf Registration Statement shall cease to be effective (other than by action of the Company pursuant to the second paragraph last sentence of Section 2(b) hereof)) without being replaced within 90 days succeeded immediately by a shelf an additional registration statement that is filed and declared effective (each such event referred to in clauses (i) through (iiiiv), a “Registration Default” and each period during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the Base Interest, shall accrue on the affected Registrable Securities for the Registration Default Period (but only with respect to one Registration Default at any particular time) until such time as all Registration Defaults have been cured then outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, which at a per annum rate shall increase by an additional 0.25% during each subsequent 90-day period, up to a maximum of 0.50% regardless of the number of Registration Defaults that shall have occurred and be continuing. Following the cure of all Registration Defaults, the accrual of Special Interest will cease. A Registration Default under clause (ii) or (iii) will be deemed cured upon consummation of the Exchange Offer in the case of a Shelf Registration Statement required to be filed due to a failure to consummate the Exchange Offer within the required time period.
(d) If during the 90 day period referenced in the final sentence of the first paragraph of Section 2(a) hereof the Exchange Registration Statement is suspended by the Company or ceases to be effective such that any broker-dealer that (i) receives Exchange Securities in the Exchange Offer and (ii) is subject to prospectus delivery requirements cannot fulfill such requirements, the Company shall pay liquidated damages to such broker-dealers in an amount calculated in a manner consistent with that specified above with respect to Registration Defaults.
(e) The Company and the Guarantors shall take all actions reasonably necessary or advisable to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement or to any prospectus supplement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.of
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Hologic Inc)
