DEUTSCHE BANK SECURITIES INC. $75,000,000 AGGREGATE PRINCIPAL AMOUNT CAPLEASE, INC. DUE 2027 Resale Registration Rights Agreement Dated October 9, 2007
EXECUTION
VERSION
DEUTSCHE
BANK SECURITIES INC.
$75,000,000
AGGREGATE PRINCIPAL AMOUNT
7.50%
CONVERTIBLE SENIOR NOTES
DUE
2027
Dated
October 9, 2007
RESALE
REGISTRATION RIGHTS AGREEMENT, dated as of October 9, 2007, between CapLease,
Inc., a Maryland
corporation (together with any successor entity, herein referred to as the
“Company”),
and
Deutsche Bank Securities Inc., as the representative (the “Representative”)
of the
initial purchasers (the “Initial
Purchasers”)
named
in the Purchase Agreement (as defined below).
Pursuant
to the Purchase Agreement, dated as of October 2, 2007, between the Company
and
the Representative on behalf of the several Initial Purchasers (the
“Purchase
Agreement”),
relating to the initial placement (the “Initial
Placement”)
of the
Notes (as defined below), the Initial Purchasers have agreed to purchase from
the Company $75,000,000 ($100,000,000 if the Initial Purchasers exercise their
option to purchase additional Notes in full) in aggregate principal amount
of
7.50% Convertible Senior Notes due 2027 (the “Notes”).
The
Notes will be convertible, subject to the terms thereof, into shares of common
stock, par value $0.01 per share, of the Company (the “Common
Stock”).
To
induce the Initial Purchasers to purchase the Notes, the Company has agreed
to
provide the registration rights set forth in this Agreement pursuant to Section
5(j) of the Purchase Agreement.
The
parties hereby agree as follows:
1. Definitions.
Capitalized
terms used in this Agreement without definition shall have their respective
meanings set forth in the Purchase Agreement. As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
“Affiliate”
of
any
specified person means any other person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Agreement”:
This
Resale Registration Rights Agreement.
“Amendment
Effectiveness Deadline Date”:
has
the meaning set forth in Section 2(f) hereof.
“Blue
Sky Application”:
has
the meaning set forth in Section 6(a)(i) hereof.
“Business
Day”:
has
the meaning set forth in the Indenture.
“Closing
Date”:
The
date of the first issuance of the Notes.
“Commission”:
U.S.
Securities and Exchange Commission.
“Common
Stock”:
has
the meaning set forth in the preamble hereto.
“Company”:
has
the meaning set forth in the preamble hereto.
“Effectiveness
Date”:
has
the meaning set forth in Section 2(a)(ii) hereof.
“Effectiveness
Period”:
has
the meaning set forth in Section 2(a)(iii) hereof.
“Effectiveness
Target Date”:
has
the meaning set forth in Section 2(a)(ii) hereof.
“Exchange
Act”:
Securities Exchange Act of 1934, as amended.
“FINRA”:
Financial Industry Regulatory Authority, Inc. (successor to the National
Association of Securities Dealers, Inc.).
“Free
Writing Prospectus”:
A free
writing prospectus, as defined in Rule 405 under the Securities
Act.
“Holder”:
A
Person who owns, beneficially or otherwise, Notes or Transfer Restricted
Securities.
“Indemnified
Holder”:
has
the meaning set forth in Section 6(a) hereof.
“Indenture”:
The
Indenture, dated as of October 9, 2007 among the Company, the guarantors named
therein and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”),
pursuant to which the Notes are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms
thereof.
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“Initial
Placement”:
has
the meaning set forth in the preamble hereto.
“Initial
Purchasers”:
has
the meaning set forth in the preamble hereto.
“Issuer
Free Writing Prospectus”:
An
issuer free writing prospectus, as defined in Rule 433 under the Securities
Act.
“Liquidated
Damages”:
has
the meaning set forth in Section 3(a) hereof.
“Liquidated
Damages Payment Date”:
Each
April 1 and October 1, if applicable.
“Losses”:
has
the meaning set forth in Section 6(a) hereof.
“Majority
of Holders”:
Holders holding over 50% of the aggregate principal amount of Notes outstanding;
provided
that,
for the purpose of this Agreement, a holder of shares of Common Stock which
constitute Transfer Restricted Securities shall be deemed to hold an aggregate
principal amount of the Notes (in addition to the principal amount of the Notes
held by such holder) equal to the quotient of (x) the number of such shares
of
Common Stock held by such holder and (y) the conversion rate in effect at the
time of their issuance upon conversion of such holder’s Notes as determined in
accordance with the Indenture.
“Managing
Underwriter”:
The
investment banker or investment bankers and manager or managers that administer
an underwritten offering, if any, conducted pursuant to Section 8
hereof.
“Notes”:
has
the meaning set forth in the preamble hereto.
“Notice
and Questionnaire”
means
a
written notice executed by the respective Holder and delivered to the Company
containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Appendix A to the Offering
Memorandum of the Company relating to the Notes.
“Notice
Holder”:
On any
date, any Holder of Transfer Restricted Securities that has properly delivered
a
fully completed Notice and Questionnaire to the Company on or prior to such
date.
“Permitted
Free Writing Prospectus”:
has the
meaning set forth in Section 9(a) hereof.
“Person”:
An
individual, partnership, corporation, company, unincorporated organization,
trust, joint venture or a government or agency or political subdivision
thereof.
“Purchase
Agreement”:
has
the meaning set forth in the preamble hereto.
“Prospectus”:
The
prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such prospectus.
“Record
Holder”:
With
respect to any Liquidated Damages Payment Date, each Person who is a registered
holder of the Notes at the close of business on the March 15 or September 15
preceding the relevant Liquidated Damages Payment Date.
“Registration
Default”:
has
the meaning set forth in Section 3(a) hereof.
“Securities
Act”:
Securities Act of 1933, as amended.
“Shelf
Filing Deadline”:
has
the meaning set forth in Section 2(a)(i) hereof.
“Shelf
Registration Statement”:
has
the meaning set forth in Section 2(a)(i) hereof.
“Suspension
Notice”:
has
the meaning set forth in Section 4(c) hereof.
“Suspension
Period”:
has
the meaning set forth in Section 4(b)(ii) hereof.
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“TIA”:
Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder, in each case, as in effect on the date the Indenture
is
qualified under the TIA.
“Transfer
Restricted Securities”:
Each
share of Common Stock issued upon conversion of Notes until the earliest
of:
(i) the
date
on which such share of Common Stock issued upon conversion has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf
Registration Statement;
(ii) the
date
on which such share of Common Stock issued upon conversion is transferred in
compliance with Rule 144 (or any other similar provision then in force) under
the Securities Act or transferable pursuant to paragraph (k) of Rule 144 under
the Securities Act (or any other similar provision then in force);
(iii) the
date
on which such share of Common Stock issued upon conversion ceases to be
outstanding (whether as a result of redemption, repurchase and cancellation,
conversion or otherwise); or
(iv) the
date
on which such share of Common Stock has otherwise been transferred and a new
share of Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance with Section
2.06 of the Indenture.
“underwriter”:
Any
underwriter of Transfer Restricted Securities in connection with an offering
thereof under the Shelf Registration Statement.
“Underwritten
Registration”:
A
registration in which Transfer Restricted Securities of the Company are sold
to
an underwriter for reoffering to the public.
Unless
the context otherwise requires, the singular includes the plural, and words
in
the plural include the singular.
2. Shelf
Registration.
(a) The
Company shall:
(i) use
its
commercially reasonable efforts within 120 days after the Closing Date (the
“Shelf
Filing Deadline”),
cause
to be filed, or otherwise designate an existing filing with the Commission
as,
a
registration statement pursuant to Rule 415 under the Securities Act or any
similar rule that may be adopted by the Commission (the “Shelf
Registration Statement”),
which
Shelf Registration Statement shall provide for the registration and resales,
on
a continuous or delayed basis, of all Transfer Restricted Securities subject
to
the terms and conditions hereof;
(ii) use
commercially reasonable efforts to cause the Shelf Registration Statement to
become effective under the Securities Act, or otherwise make available for
use
by Holders a previously filed effective Shelf Registration Statement, not later
than 210 days after the Closing Date (the “Effectiveness
Target Date”,
and
the date of such effectiveness or availability, the “Effectiveness
Date”);
and
(iii) use
commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the Securities
Act and by the provisions of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Holders of Transfer
Restricted Securities entitled, subject to the terms and conditions hereof,
to
the benefit of this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the Commission
promulgated thereunder as announced from time to time, for a period (the
“Effectiveness
Period”)
from
the date the Shelf Registration Statement becomes effective until the earliest
of (A) the date when the Holders are able to sell their Common Stock issuable
upon conversion of the Notes immediately without restriction pursuant to Rule
144(k) under the Securities Act; and (B) the date when all of the Common Stock
issuable upon conversion of the Notes have been sold either pursuant to the
Shelf Registration Statement or pursuant to Rule 144 under the Securities Act
or
any similar provision then in force or the Common Stock issuable upon conversion
of the Notes cease to be outstanding.
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(b) Not
less
than 30 days prior to the Effectiveness Target Date, the Company shall mail
the
Notice and Questionnaire to the Holders. Each Holder that becomes a Notice
Holder (and provides such additional information as the Company reasonably
may
request) no later than 10 Business Days prior to the anticipated Effectiveness
Date of the Shelf Registration Statement shall be named as a selling
securityholder in the initial Registration Statement made available to Holders
under the Shelf Registration Statement.
(c) If
the
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Transfer Restricted
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Transfer Restricted Securities), the Company
shall use commercially reasonable efforts to obtain the prompt withdrawal of
any
order suspending the effectiveness thereof or file or designate a subsequent
Shelf Registration Statement covering all of the securities that as of the
date
of such filing or designation are Transfer Restricted Securities. If such a
subsequent Shelf Registration Statement is filed or designated (and is not
already effective), the Company shall use commercially reasonable efforts to
cause the subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing or designation and to keep such
subsequent Shelf Registration Statement continuously effective until the end
of
the Effectiveness Period.
(d) The
Company shall use commercially reasonable efforts to supplement and amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act or as reasonably
requested by the Initial Purchasers or by the Trustee on behalf of the Holders
of the Transfer Restricted Securities covered by such Shelf Registration
Statement.
(e) The
Company 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, and any Issuer Free
Writing Prospectus, as of the date thereof, (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 and any Issuer Free Writing Prospectus,
in light of the circumstances under which they were made) not
misleading.
(f) Each
Holder agrees that if such Holder wishes to sell Transfer Restricted Securities
pursuant to a Shelf Registration Statement and related Prospectus, it will
do so
only in accordance with the terms and conditions of this Agreement. Each Holder
wishing to sell Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related Prospectus from and after the Effectiveness Date agrees
to
deliver a Notice and Questionnaire and any other information that the Company
may reasonably request for use in connection with the Shelf Registration
Statement or Prospectus included therein and in any application to be filed
with
or under state securities laws, to the Company at least 10 Business Days prior
to any intended distribution of Transfer Restricted Securities under the Shelf
Registration Statement. From and after the Effectiveness Date, the Company
shall, within 10 Business Days after receipt of the Notice and Questionnaire
and
such other information the Company may reasonably request, if any:
(i) if
required by applicable law, file with the SEC 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 securityholder 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 Transfer Restricted Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to
the
Shelf Registration Statement, use commercially reasonable efforts to cause
such
post-effective amendment to become effective under the Securities Act as
promptly as is practicable, but in any event by the date (the “Amendment
Effectiveness Deadline Date”)
that is
45 days after the date such post-effective amendment is required by this clause
to be filed;
(ii) provide
such Holder a copy of each document filed pursuant to Section 2(f)(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(f)(i);
provided
that if
such Notice and Questionnaire is delivered during a Suspension 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 Suspension Period in accordance with Section 4(b);
provided,
however,
that if
a post-effective amendment to the Shelf Registration Statement is required,
the
Company will not be obligated to file more than one such amendment for all
such
Holders during any fiscal quarter. Notwithstanding the preceding sentence,
the
Company will not be obligated to file more than three such supplements to the
related Prospectus during any fiscal quarter.
Notwithstanding anything contained herein to the contrary, (i) the Company
shall
be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus
and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to 10
Business Days from the Expiration of a Suspension Period (and the Company shall
incur no obligation to pay Liquidated Damages during such extension) if such
Suspension Period shall be in effect on the Amendment Effectiveness Deadline
Date.
4
3. Liquidated
Damages.
(a) If:
(i) the
Shelf
Registration Statement is not filed, or on file, with the Commission prior
to or
on the Shelf Filing Deadline;
(ii) the
Shelf
Registration Statement is not an automatic shelf registration statement and
has
not been declared effective prior to or on the Effectiveness Target Date;
(iii) the
Company has failed to perform its obligations set forth in Section 2(f) within
the time periods required therein;
(iv) any
post-effective amendment to a Shelf Registration filed pursuant to Section
2(f)(i), if not immediately effective upon filing, has not been declared
effective under the Securities Act prior to the Amendment Effectiveness Deadline
Date;
(v) except
as
provided in Section 4(b)(ii) hereof, the Shelf Registration Statement is filed
and has become effective but, during the Effectiveness Period, shall thereafter
cease to be effective or fail to be usable for its intended purpose for more
than 10 consecutive Business Days; or
(vi) any
Suspension Period (as defined below) exceeds 45 days during any 90-day period,
or when aggregated with other Suspension Periods, exceeds 90 days in any 360-day
period;
(each
such event referred to in foregoing clauses (i) through (vi), a “Registration
Default”),
the
Company hereby agrees to pay interest (“Liquidated
Damages”)
with
respect to the Transfer Restricted Securities from and including the day
following the Registration Default to but excluding the earlier of (1) the
day
on which the Registration Default has been cured and (2) the date the Shelf
Registration Statement is no longer required to be kept effective, accruing
at a
rate:
(A) in
respect of the Notes, to each holder of Notes, (x) with respect to the first
90-day period during which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the aggregate principal amount of the
Notes, and (y) with respect to the period commencing on the 91st day following
the day the Registration Default shall have occurred and be continuing, equal
to
0.50% per annum of the aggregate principal amount of the Notes; provided
that in
no event shall Liquidated Damages accrue at a rate per year exceeding 0.50%
of
the aggregate principal amount of the Notes; and
(B) in
respect of the Notes that are Transfer Restricted Securities submitted for
conversion into Common Stock during the existence of a Registration Default
with
respect to the Common Stock, the Holder will not be entitled to receive any
Liquidated Damages with respect to such Common Stock but will be entitled to
a
conversion rate adjustment in accordance with the terms as set forth in Section
10.11(e) of the Indenture; and
(C) in
respect of Common Stock issued upon conversion of Notes, each holder of such
Common Stock will not be entitled to any Liquidated Damages if the Registration
Default with respect to such Common Stock occurs after the holder has converted
the Notes into Common Stock.
(b) All
accrued Liquidated Damages shall be paid in arrears to Record Holders by the
Company on each Liquidated Damages Payment Date. Upon the cure of all
Registration Defaults relating to any particular Transfer Restricted Security,
the accrual of applicable Liquidated Damages will cease.
All
obligations of the Company set forth in this Section 3 that are outstanding
with
respect to any Transfer Restricted Security at the time such security ceases
to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such Transfer Restricted Security shall have been
satisfied in full.
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4. Registration
Procedures.
(a) In
connection with the Shelf Registration Statement, the Company shall comply
with
all the provisions of Section 4(b) hereof and shall use commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities, and pursuant thereto, shall as expeditiously as possible
prepare and file with the Commission a Shelf Registration Statement relating
to
the registration on any appropriate form under the Securities Act, or otherwise
make available for use by Holders a previously filed Shelf Registration
Statement.
(b) In
connection with the Shelf Registration Statement and any Prospectus required
by
this Agreement to permit the sale or resale of Transfer Restricted Securities,
the Company shall:
(i) Subject
to any notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iv)(D),
use
commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; upon the occurrence
of
any event that would cause the Shelf Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not
to be effective and usable for resale of Transfer Restricted Securities during
the Effectiveness Period, the Company shall file promptly a post-effective
amendment to the Shelf Registration Statement or an amendment or supplement
to
the related Prospectus or file any other required document, in the case of
clause (A), correcting any such misstatement or omission, and, in the case
of
either clause (A) or (B), use commercially reasonable efforts to cause any
such
amendment to become effective and the Shelf Registration Statement and the
related Prospectus to become usable for their intended purposes as soon as
practicable thereafter;
(ii) Notwithstanding
Section 4(b)(i) hereof, the Company may suspend the effectiveness of the Shelf
Registration Statement or the use of the related Prospectus (each such period,
a
“Suspension
Period”):
(x)
if an
event occurs and is continuing as a result of which the Shelf Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein would, in the Company’s judgment, 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
(y)
if
the Company determines in good faith that the disclosure of a material event
at
such time may be detrimental to the Company and its subsidiaries.
Upon
the
occurrence of any event described in clauses (x) and (y) of this Section
4(b)(ii), the Company shall give notice to the Holders that the availability
of
the Shelf Registration is suspended and, upon actual receipt of any such notice,
each Holder agrees not to sell any Transfer Restricted Securities pursuant
to
the Shelf Registration until such Holder’s receipt of copies of the supplemented
or amended Prospectus provided for in Section 4(b) hereof, and to hold any
communication by the Company in response to a notice from a Holder of a proposed
sale in confidence. The Suspension Period shall not exceed an aggregate of
(A)
45 days in any 90-day period and (B) 90 days in any 360-day period. The Company
shall not be required to specify in the written notice to the Holders the nature
of the event giving rise to the Suspension Period.
(iii) Prepare
and file with the Commission such amendments and post-effective amendments
to
the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and
to
comply fully with the applicable provisions of Rule 424 under the Securities
Act
in a timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all Transfer Restricted Securities covered by
the
Shelf Registration Statement during the applicable period in accordance with
the
intended method or methods of distribution by the sellers thereof set forth
or
to be set forth in the Shelf Registration Statement or supplement to the
Prospectus;
(iv)
Advise the selling Holders and the Initial Purchasers promptly and, if requested
by such selling Holders, to confirm such advice in writing (which notice
pursuant to clauses (B) through (E) below shall be accompanied by an instruction
to suspend the use of the Prospectus until the Company shall have remedied
the
basis for such suspension):
(A) when
the
Prospectus, any Prospectus supplement, any post-effective amendment or any
Issuer Free Writing Prospectus has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the same
has become effective,
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(B) of
any
request by the Commission for amendments or supplements to the Shelf
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus
or
for additional information relating thereto,
(C) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Shelf Registration Statement under the Securities Act or of any notice that
would prevent its use, or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering or
sale
in any jurisdiction, or the threatening or initiation of any proceeding for
any
of the preceding purposes,
(D) of
the
existence of any fact or the happening of any event, during the Effectiveness
Period, that makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or supplement thereto,
or
any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf Registration Statement or
the
Prospectus 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, or
(E) when
any
Issuer Free Writing Prospectus includes information that may conflict with
the
information contained in the Registration Statement.
(v) If
at any
time the Commission shall issue any stop order suspending the effectiveness
of
the Shelf Registration Statement or any notice that would prevent its use,
or
any state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use commercially reasonable efforts to obtain the withdrawal
or
lifting of such order at the earliest possible time, including, if necessary,
by
filing an amendment to the Shelf Registration Statement or a new Shelf
Registration Statement and using commercially reasonable efforts to have such
amendment or new Shelf Registration Statement declared effective, and will
provide to each Holder who is named in the Shelf Registration Statement prompt
notice of the withdrawal of any such order or of the filing or effectiveness
of
any such amendment or new registration statement;
(vi) Make
available at reasonable times for inspection by one or more representatives
of
the selling Holders, designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the Shelf Registration Statement,
and any attorney or accountant retained by such selling Holders and any
underwriter participating in any disposition pursuant to the Shelf Registration
Statement, all financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable them to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company’s officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, attorney or accountant
in connection therewith;
(vii) If
requested by any selling Holders or the Representative, promptly incorporate
in
the Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders
may reasonably request to have included therein, including, without limitation,
information relating to the “Plan of Distribution” of the Transfer Restricted
Securities;
(viii) Deliver
to each selling Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement thereto,
and any Issuer Free Writing Prospectus, as such Persons reasonably may request;
subject to Section 4(b)(ii) and subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event of
the
kind described in Section 4(b)(iv)(B) through (E), the Company hereby consents
to the use of such Prospectus and any such amendment or supplement thereto,
and
any such Issuer Free Writing Prospectus, by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(ix) Before
any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue
Sky laws of such jurisdictions in the United States as the selling Holders
may
reasonably request and use its commercially reasonable efforts to do any and
all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided,
however,
that
the Company shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of process in any
jurisdiction where it is not now so subject, other than service of process
for
suits arising out of the Initial Placement or any offering pursuant to the
Shelf
Registration Statement, or (B) to subject itself to general or unlimited service
of process or to taxation in any such jurisdiction if they are not now so
subject;
7
(x) Unless
any Transfer Restricted Securities shall be in book-entry form only, cooperate
with the selling Holders to facilitate the timely preparation and delivery
of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable securities laws);
and enable such Transfer Restricted Securities to be in such denominations
and
registered in such names as the Holders may request at least two Business Days
before any sale of Transfer Restricted Securities;
(xi) Use
commercially reasonable efforts to cause the Transfer Restricted Securities
covered by the Shelf Registration Statement to be registered with or approved
by
such other U.S. governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities;
(xii) Subject
to Section 4(b)(ii) hereof, if any fact or event contemplated by Section
4(b)(iv)(B) through (D) hereof shall exist or have occurred, use commercially
reasonable efforts to prepare a supplement or post-effective amendment to the
Shelf Registration Statement, related Prospectus (including by means of an
Issuer Free Writing Prospectus), relevant Issuer Free Writing Prospectus or
any
document incorporated therein by reference or to file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, none of the Registration Statement, the Prospectus or
any
Issuer Free Writing Prospectus will contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus and
any
such Issuer Free Writing Prospectus, in the light of the circumstances in which
they are made) not misleading;
(xiii) Provide
CUSIP numbers for all Transfer Restricted Securities not later than the
effective date of the Shelf Registration Statement and provide the Trustee
under
the Indenture with certificates for the Notes that are in a form eligible for
deposit with The Depository Trust Company;
(xiv) Cooperate
and assist in any filings required to be made with the FINRA and in the
performance of any due diligence investigation by any underwriter that is
required to be undertaken in accordance with the rules and regulations of the
FINRA;
(xv) Otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission and all reporting requirements under the rules
and
regulations of the Exchange Act;
(xvi) Make
generally available to its security holders an earnings statement satisfying
the
provisions of Section 11(a) of the Securities Act as soon as practicable after
the effective date of the Shelf Registration Statement and in any event no
later
than 40 days after the end of the 12-month period (or 75 days,
if such
period is a fiscal year) beginning with the first month of the Company’s first
fiscal quarter commencing after the effective date of the Shelf Registration
Statement;
(xvii) Cause
the
Indenture to be qualified under the TIA not later than the effective date of
the
Shelf Registration Statement required by this Agreement (or the time when the
registration as to the Notes under the Shelf Registration Statement is required
to become effective hereunder), and, in connection therewith, cooperate with
the
Trustee and the holders of Notes to effect such changes to the Indenture as
may
be required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use commercially reasonable efforts to cause the
Trustee thereunder to execute all documents that may be required to effect
such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.
In
the event that any such amendment or modification referred to in this Section
4(b)(xvii) involves the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture;
8
(xviii) Cause
all
Common Stock covered by the Shelf Registration Statement to be listed or quoted,
as the case may be, on the primary securities exchange or automated quotation
system on which Common Stock is then listed or quoted;
(xix) Provide
to each Holder upon written request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement, unless such
document is available through the Commission’s XXXXX system;
(xx) In
connection with any underwritten offering conducted pursuant to Section 8
hereof, make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, in form, substance and scope as
are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(xxi) In
connection with any underwritten offering conducted pursuant to Section 8
hereof, obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each selling Holder
and
the underwriters, if any, covering such matters as are customarily covered
in
opinions requested in underwritten offerings and such other matters as may
be
reasonably requested by such Holders and underwriters;
(xxii) In
connection with any underwritten offering conducted pursuant to Section 8,
hereof, obtain “comfort” letters and updates thereof from the independent
registered public accountants of the Company (and, if necessary, any other
independent registered public accountants of any subsidiary of the Company
or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf Registration
Statement), addressed to the underwriters, in customary form and covering
matters of the type customarily covered in “comfort” letters in connection with
primary underwritten offerings;
(xxiii) In
connection with any underwritten offering conducted pursuant to Section 8
hereof, deliver such documents and certificates as may be reasonably requested
by the Majority Holders and the Managing Underwriters, including those to
evidence compliance with Section 4(b)(iii) hereof and with any customary
conditions contained in the Purchase Agreement or other agreement entered into
by the Company;
(xxiv) In
connection with underwritten offering conducted pursuant to Section 8 hereof,
the Company shall, if requested, promptly include or incorporate in a Prospectus
supplement or post-effective amendment to the Shelf Registration Statement
such
information as the Managing Underwriters reasonably agree should be included
therein and to which the Company does not reasonably object and shall make
all
required filings of such Prospectus supplement or post-effective amendment
as
soon as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective
amendment;
(xxv) Use
commercially reasonable efforts to take all other steps necessary to effect
the
registration of the Transfer Restricted Securities covered by the Shelf
Registration Statement; and
(xxvi) Enter
into customary agreements (including, if requested, an underwriting agreement
in
customary form) and take all other appropriate actions in order to expedite
or
facilitate the registration or the disposition of the Transfer Restricted
Securities, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 hereof.
The
actions set forth in clauses (xx), (xxi), (xxii) and (xxiii) of this Section
4(b) shall be performed at each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(c) Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice (a “Suspension
Notice”)
from
the Company of the existence of any fact of the kind described in Section
4(b)(iv)(B) through (E) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement and use of the Prospectus and any related Free Writing Prospectuses
until:
9
(i) such
Holder has received copies of the supplemented or amended Shelf Registration
Statement, Prospectus or applicable Issuer Free Writing Prospectus contemplated
by Section 4(b)(xii) hereof; or
(ii) such
Holder is advised in writing by the Company that the use of the Prospectus
and
any applicable Issuer Free Writing Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus.
If
so
directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Transfer Restricted
Securities and any Issuer Free Writing Prospectus that was current at the time
of receipt of such Suspension Notice.
(d) Each
Holder agrees by acquisition of a Transfer Restricted Security, that no Holder
shall be entitled to sell any of such Transfer Restricted Securities pursuant
to
a Registration Statement, or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with a fully completed Notice and
Questionnaire as required pursuant to Section 2(b) or Section 2(f) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. The Company
may require each Notice Holder of Transfer Restricted Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Transfer
Restricted Securities as the Company may from time to time reasonably require
for inclusion in such Registration Statement. Each Notice Holder agrees promptly
to furnish to the Company all information required to be disclosed in order
to
make the information previously furnished to the Company by such Notice Holder
not misleading and any other information regarding such Notice Holder and the
distribution of such Transfer Restricted Securities as the Company may from
time
to time reasonably request in writing. Any
sale
of any Transfer Restricted Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to
such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material
fact
relating to or provided by such Holder or its plan of distribution and that
such
Prospectus does not as of the time of such sale omit to state any material
fact
relating to or provided by such Holder or its plan of distribution necessary
to
make the statements in such Prospectus, in light of the circumstances under
which they were made not misleading. The
Company may exclude from such Shelf Registration Statement the Transfer
Restricted Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
5. Registration
Expenses.
All
expenses incident to the Company’s performance of or compliance with this
Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(a) all
registration and filing fees and expenses (including filings made with the
FINRA);
(b) all
fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws, if required;
(c) all
expenses of printing (including printing of Prospectuses, Issuer Free Writing
Prospectuses and certificates for the Common Stock to be issued upon conversion
of the Notes) and the Company’s expenses for messenger and delivery services and
telephone;
(d) all
reasonable and documented fees and disbursements of counsel to the
Company;
(e) all
application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(f) all
fees
and disbursements of independent registered public accountants of the
Company.
The
Company shall bear its internal expenses (including, without limitation, all
salaries and expenses of their officers and employees performing legal,
accounting or other duties), the expenses of any annual audit and the fees
and
expenses of any Person, including special experts, retained by the Company.
The
Company shall pay all expenses customarily borne by issuers in an underwritten
offering as set forth in Section 8(c) hereof.
10
6. Indemnification
And Contribution.
(a) The
Company agrees to indemnify and hold harmless each Holder of Transfer Restricted
Securities (including the Initial Purchasers), its directors, officers,
employees and agents, and each person, if any, who controls any Holder within
the meaning of the Securities Act or the Exchange Act (each, an “Indemnified
Holder”),
against any loss, claim, damage, liability or expense, as incurred, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or expense relating to resales of the Transfer Restricted
Securities) (collectively, “Losses”),
to
which such Indemnified Holder may become subject, insofar as any such Loss
arises out of or is based upon:
(i) any
untrue statement or alleged untrue statement of a material fact contained in
(A)
the
Shelf
Registration Statement as originally filed or in any amendment thereof, or
(B)
any blue sky application or other document or any amendment or supplement
thereto prepared or executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in such blue sky
application or other document or amendment or supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a
“Blue
Sky Application”),
or,
in each case, the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements therein
not misleading; or
(ii) any
untrue statement or alleged untrue statement of a material fact contained in
any
Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus
(or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact, in each case, necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading,
and
to
reimburse each Indemnified Holder for any and all reasonable expenses (including
the fees and disbursements of counsel) as they are incurred by such Indemnified
Holder in connection with investigating, defending, settling, compromising
or
paying any such Loss; provided,
however,
that the
foregoing indemnity agreement shall not apply to any Loss to the extent, but
only to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
in
conformity with written information furnished to the Company by or on behalf
of
such Holder (or its related Indemnified Holder) expressly for use therein
(including, without limitation, information within such Holder’s Notice and
Questionnaire). The indemnity agreement set forth in this Section 6(a) shall
be
in addition to any liabilities that the Company may otherwise have.
The
Company also agrees to indemnify, as provided in this Section 6(a) or contribute
as provided in Section 6(e) hereof to Losses of each underwriter, if any, of
Transfer Restricted Securities registered under a Shelf Registration Statement,
their directors, officers, employees or agents and each person who controls
such
underwriter on substantially the same basis as that of the indemnification
of
the Initial Purchasers and the selling Holders provided in this Section 6(a)
and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(b)(xxvi)
hereof.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, each of its officers who sign the Shelf Registration
Statement and each person, if any, who controls the Company, within the meaning
of the Securities Act or the Exchange Act (i) to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity and (ii) against any Loss,
joint or several, including, but not limited to, any Loss relating to resales
of
the Transfer Restricted Securities, to which such person may become subject,
insofar as any such Loss arises out of, or is based upon any Free Writing
Prospectus used by such Holder without the prior consent of the Company, and
in
connection with any underwritten offering, the underwriters, provided
that the
indemnification obligation in this clause (ii) shall be several, not joint
and
several, among the Holders who used such Free Writing Prospectus. This indemnity
agreement set forth in this Section shall be in addition to any liabilities
which any such Holder may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 6, notify
the indemnifying party in writing of the commencement thereof, but the failure
to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. In case any such action is brought against any indemnified party and
such
indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the extent
that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party;
provided,
however,
if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that
there
may be legal defenses available to it and/or other indemnified parties that
are
different from or additional to those available to the indemnifying party,
the
indemnified party or parties shall have the right to select separate counsel
to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel
in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (other than local counsel), reasonably approved
by the indemnifying party, representing the indemnified parties who are parties
to such action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
11
(d) The
indemnifying party under this Section 6 shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be
withheld unreasonably, but if settled with such consent or if there is a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any Loss by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 6(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of
the indemnified party, effect any settlement, compromise or consent to the
entry
of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity
was
or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (x) includes an unconditional release of
such
indemnified party from all liability on claims that are the subject matter
of
such action, suit or proceeding and (y) does not include a statement as to
or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) If
the
indemnification provided for in this Section 6 is for any reason unavailable
to
or otherwise insufficient to hold harmless an indemnified party in respect
of
any Loss referred to therein, then each indemnifying party shall contribute
to
the aggregate amount paid or payable by such indemnified party, as incurred,
as
a result of any Loss referred to therein,
in such
proportion as is appropriate to reflect the relative fault of the Company,
on
the one hand, and the Holders, on the other hand, in connection with the
statements or omissions or alleged statements or omissions that resulted in
such
Loss, as well as any other relevant equitable considerations.
The
relative fault of the Company, on the one hand, and the Holders, on the other
hand, shall be determined by reference to, among other things, whether any
such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Holders, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to timely
correct or prevent such statement or omission. The Company and the Holders
agree
that it would not be just and equitable if contribution pursuant to this Section
6(e) were determined by pro
rata
allocation (even if the Holders were treated as one entity for such purpose)
or
by any other method of allocation that does not take account of the equitable
considerations referred to in this Section 6(e).
The
amount paid or payable by a party as a result of the Loss referred to above
shall be deemed to include, subject to the limitations set forth in Section
6(c), any legal or other fees or expenses reasonably incurred by such party
in
connection with investigating or defending any action or claim.
Notwithstanding
the provisions of this Section 6, in no event will (i) any Holder be required
to
undertake liability to any person under this Section 6 for any amounts in excess
of the dollar amount of the proceeds to be received by such Holder from the
sale
of such Holder’s Transfer Restricted Securities (after deducting any fees,
discounts and commissions applicable thereto) pursuant to any Shelf Registration
Statement under which such Transfer Restricted Securities are to be registered
under the Securities Act and (ii) any underwriter be required to undertake
liability to any person hereunder for any amounts in excess of the discount
or
commission payable to such underwriter with respect to the Transfer Restricted
Securities underwritten by it and distributed to the public. No Person guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations to
contribute as provided in this Section 6(e) are several and not
joint.
12
(f) The
provisions of this Section 6 shall remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder, the Company, or any
of
the officers, directors, employees, agents or controlling persons referred
to in
Section 6 hereof, and will survive the sale by a Holder of Transfer Restricted
Securities.
7. Rule
144A and Rule 144. The
Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i)
is
not subject to Section 13 or 15(d) of the Exchange Act, to make available,
upon
request of any Holder, to such Holder of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities designated by such Holder, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15(d) of the Exchange Act, to make all filings required thereby
in
a timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
8. Underwritten
Registrations.
(a) Any
Holder of Transfer Restricted Securities who desires to do so may sell Transfer
Restricted Securities (in whole or in part) in an underwritten offering;
provided
that (i)
the Notice Holders of at least 33-1/3% in aggregate principal amount of the
Transfer Restricted Securities then covered by the Shelf Registration Statement
shall request such an offering and (ii) at least such aggregate principal amount
of such Transfer Restricted Securities shall be included in such offering (which
shall be no less than $15 million aggregate principal amount); and provided
further
that the
Company shall not be obligated to participate in more than one underwritten
offering during the Effectiveness Period. Upon receipt of such a request, the
Company shall provide all Holders of Transfer Restricted Securities written
notice of the request, which notice shall inform such Holders that they have
the
opportunity to participate in the offering. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No
person
may participate in any underwritten offering pursuant to the Shelf Registration
Statement unless such person (i) agrees to sell such person’s Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements; (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements; and (iii) if such
Holder is not then a Notice Holder, such Holder returns a completed and signed
Notice and Questionnaire to the Company in accordance with Section 2(b) or
Section 2(f) hereof within a reasonable amount of time before such underwritten
offering.
(c) The
Holders participating in any underwritten offering shall be responsible for
any
underwriting discounts and commissions and fees and, subject to Section 5
hereof, expenses of their own counsel. The Company shall pay all expenses
customarily borne by issuers in an underwritten offering, including but not
limited to filing fees, the fees and disbursements of its counsel and
independent public accountants and any printing expenses incurred in connection
with such underwritten offering. Notwithstanding the foregoing or the provisions
of Section 4(b)(xxiv) hereof, upon receipt of a request from the Managing
Underwriter or a representative of holders of a majority of the Transfer
Restricted Securities to be included in an underwritten offering to prepare
and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company may delay
the filing of any such amendment or supplement for up to 90 days if the Board
of
Directors of the Company shall have determined in good faith that the Company
has a bona fide business reason for such delay.
9. Miscellaneous.
(a) Free
Writing Prospectuses.
Each
Holder represents that it has not prepared or had prepared on its behalf or
used
or referred to, and agrees that it will not prepare or have prepared on its
behalf or use or refer to, any Free Writing Prospectus, and has not distributed
and will not distribute any written materials in connection with the offer
or
sale of the Transfer Restricted Securities without the prior express written
consent of the Company and, in connection with any underwritten offering, the
underwriters. Any such Free Writing Prospectus consented to by the Company
and,
if applicable, the underwriters, as the case may be, is hereinafter referred
to
as a “Permitted
Free Writing Prospectus.”
The
Company represents and agrees that it has treated and will treat, as the case
may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and recordkeeping.
13
(b) Actions
Affecting Transfer Restricted Securities.
The
Company shall not, directly or indirectly, take any action with respect to
the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(c) No
Inconsistent Agreements.
The
Company has not, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Company shall
not grant to any of its respective securityholders (other than the Holders
of
Transfer Restricted Securities in such capacity) the right to include any of
its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities.
(d) Amendments
and Waivers.
This
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of a Majority of Holders; provided,
however,
that
with respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the written
consent of the Representative against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Shelf
Registration Statement and does not directly or indirectly adversely affect
the
rights of other Holders, may be given by the Majority Holders, determined on
the
basis of Transfer Restricted Securities being sold rather than registered under
such Shelf Registration Statement.
(e) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, first class mail (registered or certified,
return receipt requested), facsimile transmission, or air courier guaranteeing
overnight delivery:
(i) if
to a
Holder, at the address set forth on the records of the registrar under the
Indenture or the transfer agent of the Common Stock, as the case may be;
and
(ii) if
to the
Company, initially at its address set forth in the Purchase
Agreement,
With
a
copy to:
Xxxxxx
Xxxxx III, Esq.
Shearman
& Sterling LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; four Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if
transmitted by facsimile; and on the next Business Day, if timely delivered
to
an air courier guaranteeing overnight delivery.
Any
party
hereto may change the address for receipt of communications by giving written
notice to the others.
(f) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities. The Company hereby agrees to extend the benefit of this Agreement
to
any Holder and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(g) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts (including by facsimile), each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same agreement.
(h) Notes
Held by the Company or its Affiliates.
Whenever
the consent or approval of Holders of a specified percentage of Notes or
Transfer Restricted Securities is required hereunder, the Notes or Transfer
Restricted Securities held by the Company or its Affiliates (other than
subsequent Holders if such subsequent Holders are deemed to be Affiliates solely
by reason of their holding of such Notes or Transfer Restricted Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(i) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
14
(j) GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE
STATE OF NEW YORK.
(k) Severability.
If any
one or more of the provisions contained herein, or the application thereof
in
any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and
of
the remaining provisions contained herein shall not be affected or impaired
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(l) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
15
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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| By | /s/ Xxxx X. XxXxxxxx | |
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Name: Xxxx
X. XxXxxxxx
Title: Chief
Executive Officer
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DEUTSCHE
BANK SECURITIES INC.
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| By | /s/ Xxxxxxxx Xxxxxxxxx | |
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Authorized
Representative
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| By | /s/ Xxxxx Xxxxxxxxx | |
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Authorized
Representative
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