Registration Rights Agreement Dated as of June 20, 2007 between Iconix Brand Group, Inc. and The Purchasers listed on the signature pages hereto
EXECUTION
COPY
Dated
as of June 20, 2007
between
and
The
Purchasers listed on the signature pages hereto
1
This
Registration Rights Agreement (the “Agreement”) is made and entered into this 20
day of June, 2007, between Iconix Brand Group, Inc., a Delaware corporation
(the
“Company”), and the purchasers named on Schedule A hereto (collectively, the
“Purchasers”).
This
Agreement is made pursuant to the Purchase Agreement (the “Purchase Agreement”),
dated June 14, 2007, between the Company and the Purchasers, which provides
for
the sale by the Company to the Purchasers of $250,000,000 aggregate principal
amount ($287,500,000 aggregate principal amount if the Purchasers exercise
their
over-allotment option in full) of the Company’s 1.875% Convertible Senior
Subordinated Notes due 2012 (the “Notes” and together with the shares of Common
Stock of the Company into which the Notes are convertible, the “Securities”). In
order to induce the Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide to the Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase
Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As
used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
“1933
Act”
shall
mean the Securities Act of 1933, as amended from time to time.
“1934
Act”
shall
mean the Securities Exchange Act of l934, as amended from time to
time.
“1939
Act”
shall
mean the Trust Indenture Act of 1939, as amended from time to time.
“Additional
Interest”
shall
have the meaning set forth in Section 2.4 herein.
“Agreement”
shall
have the meaning set forth in the preamble.
“Closing
Date”
shall
mean the Closing Time as defined in the Purchase Agreement.
“Common
Stock”
shall
mean any shares of common stock, without par value, of the Company and any
other
shares of common stock as may constitute “Common Stock” for purposes of the
Indenture.
“Company”
shall
have the meaning set forth in the preamble and shall also include the Company’s
successors.
2
“Depositary”
shall
mean The Depository Trust Company, or any other depositary appointed by the
Company, provided,
however,
that
such depositary must have an address in the Borough of Manhattan, in the City
of
New York.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2.1(b) herein.
“Holder”
shall
mean the Purchasers, for so long as they own any Registrable Securities, and
their successors, assigns and direct and indirect transferees who become owners,
beneficial or otherwise, of Registrable Securities under the
Indenture.
“Holders’
Counsel”
shall
have the meaning set forth in this Section 1.
“Indenture”
shall
mean the Indenture relating to the Securities, dated as of the date hereof,
between the Company and The Bank of New York, a New York banking corporation,
as
Trustee, as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof.
“Issuer
Free Writing Prospectus”
shall
have the meaning set forth in Section 2.1(f) herein.
“Majority
Holders”
shall
mean the Holders of a majority of the aggregate principal amount of outstanding
Registrable Securities; provided that,
for
purposes of this definition, (1) a Holder of shares of Common Stock that
constitutes Registrable Securities which were issued upon conversion of the
Notes shall be deemed to hold an aggregate principal amount of Registrable
Securities (in addition to the principal amount of any Registrable Securities
held by such Holder) equal to the principal amount of Registrable Securities
which were converted into such shares of Common Stock and (2) such Registrable
Securities which were converted into such shares of Common Stock shall be deemed
to be outstanding; provided further,
that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the
Company or any Affiliate (as defined in the Indenture) of the Company shall
be
disregarded in determining whether such consent or approval was given by the
Holders of such required percentage amount.
“Notes”
shall
have the meaning set forth in the preamble.
“Offering
Memorandum”
shall
mean the offering memorandum of the Company, dated June 14, 2007, related to
the
Securities.
“Person”
shall
mean an individual, partnership (general or limited), corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
“Prospectus”
shall
mean the prospectus included in a Shelf Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including any such prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and in each
case including all materials incorporated by reference therein.
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“Purchase
Agreement”
shall
have the meaning set forth in the preamble.
“Purchasers”
shall
have the meaning set forth in the preamble.
“Questionnaire”
shall
have the meaning set forth in Section 2.1(d) herein.
“Registrable
Securities”
shall
mean all or any of the Securities; provided,
however,
that
any such Securities shall cease to be Registrable Securities at the earlier
of
when (i) a Shelf Registration Statement with respect to such Securities shall
have been declared effective or otherwise become effective under the 1933 Act
and such Securities shall have been disposed of pursuant to such Shelf
Registration Statement, (ii) such Securities have been sold to the public
pursuant to Rule 144 or may be sold or transferred pursuant to Rule l44(k)
(or
any similar provision then in force, but not Rule 144A) under the 1933 Act
by
holders who are not “affiliates” of the Company, or (iii) such Securities shall
have ceased to be outstanding.
“Registration
Default”
shall
have the meaning set forth in Section 2.4 herein.
“Registration
Expenses”
shall
mean any and all expenses incident to performance of or compliance by the
Company with this Agreement, whether or not a Shelf Registration Statement
becomes effective, including without limitation: (i) all SEC, stock exchange
or
National Association of Securities Dealers, Inc. (the “NASD”) registration and
filing fees, including, if applicable, the reasonable and documented fees and
expenses of any “qualified independent underwriter” (and its counsel) that is
required to be retained by any holder of Registrable Securities in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
by the Company in connection with compliance with state securities or blue
sky
laws and compliance with the rules of the NASD (including reasonable and
documented fees and disbursements of counsel for any underwriters or Holders
in
connection with blue sky qualification of any of the Registrable Securities
and
any filings with the NASD), (iii) all expenses of the Company in preparing
or
assisting in preparing, word processing, printing and distributing any Shelf
Registration Statement, any Prospectus, any amendments or supplements thereto,
any securities sales agreements and other documents relating to the performance
of and compliance with this Agreement, (iv) all fees and expenses incurred
by
the Company in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, (v) all rating agency fees
incurred by the Company, if any, (vi) the fees and disbursements of counsel
for
the Company and of the independent public accountants of the Company, including
the expenses of any special audits or “comfort” letters required by or incident
to such performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable and documented fees
and
expenses of a single counsel to the Holders, which counsel shall be selected
by
the Majority Holders or the Purchasers on their behalf, (the “Holders’ Counsel”)
in connection with the Shelf Registration Statement, and (ix) any fees and
expenses of any special experts retained by the Company in connection with
any
Shelf Registration Statement, but excluding any underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of
Registrable Securities by a Holder and the fees and expenses of any counsel
to,
or other experts retained by, the Holders, except as provided for in clause
(viii) above.
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“SEC”
shall
mean the Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United
States Securities and Exchange Commission.
“Securities”
shall
have the meaning set forth in the preamble.
“Shelf
Registration”
shall
mean a registration effected pursuant to Section 2.1 hereof.
“Shelf
Registration Statement”
shall
mean a “shelf” registration statement of the Company pursuant to the provisions
of Section 2.1 of this Agreement which covers all of the Registrable Securities
on an appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
“Suspension
Period”
shall
have the meaning set forth in Section 2.5 herein.
“Trustee”
shall
mean the trustee with respect to the Securities under the
Indenture.
“Underwriter”
shall
have the meaning set forth in Section 4(a).
2. Registration
Under the 1933 Act.
2.1 Shelf
Registration.
(a) The
Company shall, at its cost, no later than 90 days after the Closing Date, file
with SEC, and thereafter shall use its commercially reasonable efforts to cause
to be declared effective as promptly as practicable but no later than 180 days
after making such filing, a Shelf Registration Statement (which may be an
automatic shelf registration statement if the Company at the time such Shelf
Registration Statement is filed is a well-known, seasoned issuer) relating
to
the offer and sale of the Registrable Securities by the Holders that have
provided the information pursuant to Section 2.1(d).
(b) The
Company shall, at its cost, use its commercially reasonable efforts, subject
to
Section 2.5, to keep the Shelf Registration Statement continuously effective
in
order to permit the Prospectus forming part thereof to be usable by Holders
beginning upon the effective date of the Shelf Registration Statement (i) for
a
period of two years from the Closing Date or (ii) for such shorter period that
will terminate when (A) all Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement, (B)
when
the Holders, other than “affiliates” (as defined in Rule 144 under the 0000 Xxx)
of the Company are able to sell or transfer to the public all securities
immediately without restriction pursuant to Rule 144 (or any similar provision
then in force, including Rule 144 (k) but not Rule 144A) under the 1933 Act
or
(C) when all Registrable Securities cease to be outstanding or otherwise cease
to be Registrable Securities (the “Effectiveness Period”).
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(c) Notwithstanding
any other provisions hereof, the Company shall use its commercially reasonable
efforts to provide that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(d) Notwithstanding
any other provision hereof, no Holder of Registrable Securities may include
any
of its Registrable Securities in the Shelf Registration Statement pursuant
to
this Agreement unless the Holder furnishes to the Company a fully completed
notice and questionnaire in the form attached as Annex A to the Offering
Memorandum (the “Questionnaire”) and such other information in writing as the
Company may reasonably request in writing 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. At least 30 days prior to the
filing of the Shelf Registration Statement, the Company will provide notice
to
the Holders of its intention to file the Shelf Registration Statement. In order
to be named as a selling securityholder in the Prospectus at the time of
effectiveness of the Shelf Registration Statement, each Holder must, before
the
filing of the Shelf Registration Statement and no later than the 20th day after
being notified of the Company’s intention to file, furnish the completed
Questionnaire and such other information that the Company may reasonably request
in writing, if any, to the Company in writing and the Company shall include
the
information from the completed Questionnaire and such other information, if
any,
in the Shelf Registration Statement and the Prospectus in a manner so that
upon
effectiveness of the Shelf Registration Statement the Holder will be permitted
to deliver the Prospectus to purchasers of the Holder’s Registrable Securities.
From and after the date that the Shelf Registration Statement is first declared
effective by the SEC or otherwise becomes effective, upon receipt of a completed
Questionnaire and such other information that the Company may reasonably request
in writing, if any, the Company will use its commercially reasonable efforts
to
file (i) within 20 business days any amendments to the Shelf Registration
Statement or supplements to the Prospectus or (ii) within 10 business days
any
report filed with the SEC under the 1934 Act, if the Company is permitted to
do
so pursuant to the 1933 Act and the regulations thereunder, necessary for such
Holder to be named as a selling securityholder in the Prospectus contained
therein to permit such Holder to deliver the Prospectus to purchasers of the
Holder’s Securities (subject to the Company’s right to suspend the Shelf
Registration Statement as described in Section 2.5 below). Holders that do
not
deliver a completed written Questionnaire and such other information, as
provided for in this Section 2.1(d), will not be named as selling
securityholders in the Prospectus. Each Holder named as a selling securityholder
in the Prospectus agrees to promptly furnish to the Company all information
required to be disclosed in order to make information previously furnished
to
the Company by the Holder not materially misleading and any other information
regarding such Holder and the distribution of such Holder’s Registrable
Securities as the Company may from time to time reasonably request in
writing.
6
(e) During
the Effectiveness Period, each Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement without delivering,
or
causing to be delivered, a Prospectus to the purchaser thereof.
(f) The
Company represents and agrees that, unless it obtains the prior consent of
Holders of a majority in principal amount of the Registrable Securities that
are
registered under the Shelf Registration Statement at such time or the approval
of Holders’ Counsel or the consent of the managing underwriter in connection
with any underwritten offering of Registrable Securities, and each Holder
represents and agrees that, unless it obtains the prior consent of the Company
and any such underwriter, it will not make any offer relating to the Securities
(which, for the avoidance of doubt, will not include any shares of Common Stock
which are not Securities within the meaning of this Agreement) that would
constitute an “issuer free writing prospectus,” as defined in Rule 433 under the
1933 Act (an “Issuer Free Writing Prospectus”), or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405 under the 1933
Act, required to be filed with the SEC. The Company represents that any Issuer
Free Writing Prospectus will not include any information that conflicts with
the
information contained in the Shelf Registration Statement or Prospectus and
that
any Issuer Free Writing Prospectus, when taken together with the information
in
the Shelf Registration Statement and the Prospectus, will not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
The
Company will not permit any securities other than Registrable Securities to
be
included in the Shelf Registration Statement. The Company agrees to supplement
or amend the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used by the Company if
required by the 1933 Act, or to the extent the Company does not reasonably
object, as reasonably requested in writing by any Holder with respect to
information relating to such Holder, and to furnish to the Holders of
Registrable Securities that are covered under such Shelf Registration Statement
copies of any such supplement or amendment promptly after its being used or
filed with the SEC in such amounts as they may reasonably request.
2.2 Expenses.
The
Company shall pay all Registration Expenses in connection with the registration
pursuant to Section 2.1. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of
such Holder’s Registrable Securities pursuant to the Shelf Registration
Statement.
2.3 Effectiveness.
(a)
The
Company will be deemed not to have used its commercially reasonable efforts
to
cause the Shelf Registration Statement to become, or to remain, effective during
the requisite period (subject to Section 2.5) if the Company voluntarily takes
any action that would, or voluntarily omits to take any action which omission
would, result in any such Shelf Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to offer and sell such Registrable Securities during that period as and
to
the extent contemplated hereby, unless such action or omission is required
by
applicable law.
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(b) A
Shelf
Registration Statement will not be deemed to have become effective unless it
has
been declared effective by the SEC or has become automatically effective under
the 1933 Act; provided,
however,
that
if, after it has been declared or become effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered with by
any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Shelf Registration Statement will not be
deemed to be effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Shelf Registration Statement
may legally resume.
2.4 Interest.
In the
event that (a) a Shelf Registration Statement is not filed with the SEC on
or
before the 90th calendar day following the Closing Date, (b) a Shelf
Registration Statement is not declared effective or otherwise becomes effective
on or prior to the 180th calendar day following the making of such filing,
(c)
after effectiveness, subject to Section 2.5, the Shelf Registration Statement
ceases to be effective or fails to be usable by the Holders without being
succeeded within seven business days by a post-effective amendment or a report
filed with the SEC pursuant to the 1934 Act that immediately cures the failure
to be effective or usable, or (d) during the Effectiveness Period, the
Prospectus is unusable by the Holders for any reason, exceeding the number
of
days set forth in Section 2.5 (each such event being a “Registration
Default”),
additional interest (“Additional
Interest”)
will
accrue at a rate per annum of one-quarter of one percent (0.25%) of the
principal amount of the Securities for the first 90 day period from the day
following the Registration Default, and thereafter at a rate per annum of
one-half of one percent (0.50%) of the principal amount of the Securities;
provided
that in
no event shall Additional Interest accrue at a rate per annum exceeding one
half
of one percent (0.50%) of the issue price of the Securities; provided further
that no
Additional Interest shall accrue after the second anniversary of the Closing
Date. Upon the cure of all Registration Defaults then continuing, the accrual
of
Additional Interest will automatically cease and the interest rate borne by
the
Securities will revert to the original interest rate at such time. Additional
Interest shall be computed based on the actual number of days elapsed in each
90-day period in which the Shelf Registration Statement or the Prospectus is
not
effective or is unusable. Holders who have received Common Stock in connection
with the conversion of the Notes will not be entitled to receive any Additional
Interest with respect to such Common Stock or the issue price of the Securities
converted.
The
Company shall notify the Trustee within five business days after each and every
date on which an event occurs in respect of which Additional Interest is
required to be paid. Additional Interest shall be paid by depositing with the
Trustee, in trust, for the benefit of the Holders of Registrable Securities,
on
or before the applicable semiannual interest payment date, in immediately
available funds in sums sufficient to pay the Additional Interest then due.
The
Additional Interest due shall be payable in arrears on each interest payment
date to the record Holder of Registrable Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the Registration Default to but excluding the day
on
which the Registration Default is cured.
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A
Registration Default under clause (a) above shall be cured on the date that
the
Registration Statement is filed with the SEC. A Registration Default under
clause (b) above shall be cured on the date that the Shelf Registration
Statement is declared effective by the SEC or deemed to become automatically
effective under the 1933 Act. A Registration Default under clauses (c) or (d)
above shall be cured on the date an amended Shelf Registration Statement is
declared effective by the SEC or deemed to become automatically effective under
the 1933 Act, or the Company otherwise declares the Shelf Registration Statement
and the Prospectus useable, as applicable. The Company will have no liabilities
for monetary or other damages other than the Additional Interest with respect
to
any Registration Default.
2.5 Suspension.
Notwithstanding any other provision hereof, the Company may suspend the use
of
any Prospectus, without incurring or accruing any obligation to pay Additional
Interest pursuant to Section 2.4 hereof or being deemed in violation of any
other provision hereof, for a period or periods (each, a “Suspension Period”)
not to exceed an aggregate 60 calendar days in any three-month period, or an
aggregate of 120 calendar days in any twelve-month period, if management 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 without limitation proposed or pending corporate developments and
similar events or because of filings with the SEC, 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. Each Holder
shall keep confidential any communications received by it from the Company
regarding the suspension of the use of the Prospectus, except as required by
applicable law.
3. Registration
Procedures.
In
connection with the obligations of the Company with respect to the Shelf
Registration, the Company shall, subject to the rights of the Company to invoke
and maintain a Suspension Period in accordance with Section 2.5 without being
in
violation of any of the provisions hereunder:
(a) prepare
and file with the SEC a Shelf Registration Statement, within the relevant time
period specified in Section 2, on the appropriate form under the 1933 Act,
which
form (i) shall be selected by the Company, (ii) shall be available for the
sale
of the Registrable Securities by the selling Holders thereof, (iii) shall comply
as to form in all material respects with the requirements of the applicable
form
and include or incorporate by reference all financial statements required by
the
SEC to be filed therewith or incorporated by reference therein, and (iv) shall
comply in all respects with the applicable requirements of Regulation S-T under
the 1933 Act, if any, and use commercially reasonable efforts to cause such
Shelf Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Shelf
Registration Statement as may be necessary under applicable law to keep the
Shelf Registration Statement effective for the Effectiveness Period, subject
to
Section 2.5; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424
(or any similar provision then in force) under the 1933 Act and comply during
the Effectiveness Period with the provisions of the 1933 Act, the 1934 Act
and
the rules and regulations thereunder required to enable the disposition of
all
Registrable Securities covered by the Shelf Registration Statement in accordance
with the intended method or methods of distribution by the selling Holders
thereof;
9
(c) (i)
notify each Holder of Registrable Securities of the filing of a Shelf
Registration Statement with respect to the Registrable Securities; (ii) furnish
to each Holder of Registrable Securities that has provided the information
required by Section 2.1(d) and to each underwriter of an underwritten offering
of Registrable Securities, if any, without charge, electronic copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the unrestricted sale
or
other disposition of the Registrable Securities; and (iii) subject to Section
2.5 hereof and to any notice by the Company in accordance with Section 3(e)
hereof of the existence of any fact of the kind described in Sections 3(e)(ii),
(iii), (iv), (v) and (vi) hereof, hereby consent to the use of the Prospectus
or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities that has provided the information required by Section
2.1(d) in connection with the offering and sale of the Registrable
Securities;
(d) use
commercially reasonable efforts to register or qualify the Registrable
Securities for exemptions under all applicable state securities or “blue sky”
laws of such jurisdictions as any Holder of Registrable Securities covered
by a
Shelf Registration Statement and each underwriter of an underwritten offering
of
Registrable Securities shall reasonably request, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Holder and underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided,
however,
that
the Company shall not be required to (i) qualify as a foreign corporation or
as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify
promptly each Holder of Registrable Securities under a Shelf Registration
Statement that has provided the information required by Section 2.1(d) and,
if
requested by such Holder, confirm such advice in writing promptly (i) when
a
Shelf Registration Statement has become effective and when any post-effective
amendments thereto have become effective, (ii) of any request by the SEC or
any
state securities authority for post-effective amendments and supplements to
a
Shelf Registration Statement and Prospectus or for additional information
relating thereto after the Shelf Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Shelf Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the happening of any
event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Shelf Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Shelf Registration Statement or
Prospectus in order to make the statements therein (in the case of the
Prospectus in light of the circumstances under which they were made) not
misleading, (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale
in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vi) of any determination by the Company that a post-effective
amendment to such Shelf Registration Statement would be appropriate, other
than
a post-effective amendment solely to add selling Holders;
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(f) furnish
to Holders’ Counsel on behalf of the Holders of Registrable Securities (i)
copies of any comment letters received from the SEC with respect to a Shelf
Registration Statement, and, if requested, with respect to any documents
incorporated therein and (ii) any other request by the SEC or any state
securities authority for amendments or supplements to a Shelf Registration
Statement and Prospectus or for additional information with respect to the
Shelf
Registration Statement and Prospectus;
(g) use
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Shelf Registration Statement at the earliest possible
moment and provide prompt notice to each Holder of the withdrawal of such
order;
(h) furnish
to each Holder of Registrable Securities that has provided the information
required by Section 2.1(d), and each underwriter, if any, without charge, at
least one conformed copy of each Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested);
(i) if
electronic global certificates for the Registrable Securities are not then
available, cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends (other
than as required by applicable law); and enable such Registrable Securities
to
be in such denominations (consistent with the provisions of the Indenture)
and
registered in such names as the selling Holders or the underwriters, if any,
may
reasonably request at least three business days prior to the closing of any
sale
of Registrable Securities;
(j) upon
the
occurrence of any event or the discovery of any facts, each as contemplated
by
Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, as promptly as practicable
after the occurrence of such an event, use commercially reasonable efforts
to
prepare a supplement or post-effective amendment to the Shelf Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any untrue statement of a material fact
or
omit to state a material fact necessary to make the statements therein, in
light
of the circumstances under which they were made, not misleading or will remain
so qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of Registrable
Securities covered by such Shelf Registration Statement of such determination
and to furnish each Holder such number of copies of the Prospectus as amended
or
supplemented, as such Holder may reasonably request;
11
(k) no
less
than three business days after the filing of any Shelf Registration Statement,
any Prospectus, any amendment to a Shelf Registration Statement or amendment
or
supplement to a Prospectus (other than amendments and supplements that do
nothing more than name Holders and provide information with respect thereto),
provide copies of such document to the Trustee on behalf of such Holders, and
make representatives of the Company, as shall be reasonably requested by the
Holders’ Counsel, available for discussion of such document;
(l) obtain
CUSIP numbers for all Registrable Securities not later than the effective date
of the Shelf Registration Statement and provide the Trustee with printed
certificates for the Registrable Securities in a form eligible for deposit
with
the Depositary;
(m) (i)
cause
the Indenture to be qualified under the 1939 Act in connection with the
registration of the Registrable Securities, (ii) cooperate with the Trustee
and
the Holders to effect such changes to the Indenture as may be required for
the
Indenture to be so qualified in accordance with the terms of the 1939 Act,
and
(iii) execute, and use commercially reasonable efforts to cause the Trustee
to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture
to
be so qualified in a timely manner;
(n) subject
to the last paragraph of this Section 3(n), enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and
take
all other customary and appropriate actions, if any, as the Majority Holders
shall reasonably request in writing in order to expedite or facilitate the
disposition of such Registrable Securities, including, but not limited
to:
(i) obtain
opinions of counsel to the Company and updates thereof addressed to each selling
Holder and the underwriters, if any, covering the matters set forth in the
opinions of such counsel delivered at the Closing Date as are customarily
covered in legal opinions in connection with underwritten offering of
securities;
(ii) obtain
“comfort” letters and updates thereof from the Company’s independent certified
public accountants (and, if necessary, any other independent certified public
accountants of the subsidiary of the Company or of any business acquired by
the
Company for which financial statements are, or are required to be, included
in
the Shelf Registration Statement) addressed to the underwriters, if any, and
use
commercially reasonable efforts to have such letter addressed to the selling
Holders of Registrable Securities (to the extent consistent with Statement
on
Auditing Standards No. 72 of the American Institute of Certified Public
Accounts);
(iii) if
an
underwriting agreement is entered into, use commercially reasonable efforts
to
cause the same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and procedures set
forth in Section 4 hereof with respect to the underwriters and all other parties
to be indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such underwriters in similar
types of transactions; and
12
(iv) deliver
such documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any.
The
above
shall be done only in connection with any underwritten offering using such
Shelf
Registration Statement pursuant to an underwriting or similar agreement as
and
to the extent required thereunder, and as reasonably requested by the Majority
Holders thereto. The Company will not be required to pay the costs and expenses
of, or to participate in the marketing or “road show” presentations of, an
underwritten offering of Registrable Securities unless requested by the Majority
Holders; provided,
however,
that in
no event shall an underwritten offering of Registrable Securities be made
without the prior written agreement of the Company;
(o) if
reasonably requested in connection with a disposition of Registrable Securities
and reasonably necessary to complete such disposition, upon reasonable advance
notice, make available for inspection during business hours by representatives
of the Holders of the Registrable Securities, any underwriters participating
in
any disposition pursuant to a Shelf Registration Statement and any counsel
or
accountant retained by any of the foregoing, all appropriate financial and
other
records, pertinent corporate documents and properties of the Company reasonably
requested in writing by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Shelf Registration Statement,
and make such representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Purchasers, in each case
as is
customary for “due diligence” investigations; provided
that, to
the extent the Company, in its reasonable discretion, agrees to disclose
material non-public information, or other confidential information, such persons
shall first agree in writing with the Company that any such non-public
information, or other confidential information, shall be kept confidential
by
such persons and shall be used solely for the purposes of exercising rights
under this Agreement and such person shall not engage in trading any securities
of the Company until any such material non-public information becomes properly
publicly available, unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by
law
(including any disclosure requirements pursuant to federal securities laws
in
connection with the filing of any Shelf Registration Statement or the use of
any
Prospectus referred to in this Agreement upon a customary opinion of counsel
for
such persons delivered and reasonably satisfactory to the Company), (iii) such
information becomes generally available to the public other than as a result
of
a disclosure or failure to safeguard by any such person, (iv) such information
becomes available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement, or (v) such non-public
information ceases to be material; provided further,
that,
the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Holders and the other parties
entitled thereto by Holders’ Counsel;
(p) if
requested in writing by any selling Holder of Registrable Securities that has
provided the information required by Section 2.1(d), a reasonable time prior
to
filing the Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to the Shelf Registration Statement or amendment or supplement
to
such Prospectus (other than amendments and supplements that do nothing more
than
name Holders and provide information with respect thereto), (i) provide copies
of such document to the Holders of Registrable Securities that have provided
the
information required by Section 2.1(d), to Holders’ Counsel and to the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, (ii) make such changes in any such document prior to the
filing thereof as Holders’ Counsel or the underwriter or underwriters reasonably
agree should be included therein and provide to the Company in writing for
inclusion therein within three business days of delivery of such copies, (iii)
if requested by any selling Holder of Registrable Securities that has provided
the information required by Section 2.1(d), not file any such document in a
form
(A) to which the Majority Holders, Holders’ Counsel or any underwriter shall not
have previously been advised and furnished a copy of or (B) to which the
Majority Holders, Holders’ Counsel or any underwriter shall reasonably object
within three business days of delivery of such copies, and (iv) make the
representatives of the Company available for discussion of such document as
shall be reasonably requested in writing by the Holders of Registrable
Securities, Holders’ Counsel or any underwriter; provided,
however,
that
the foregoing discussion shall be coordinated on behalf of the parties entitled
thereto by the Holders’ Counsel and shall be kept confidential by the Holders in
accordance with the terms of the first proviso of Section 3(o)
hereof;
13
(q) if
requested by any selling Holder that has provided the information required
by
Section 2.1(d) and subject to the proviso in Section 2.1(d), or the
underwriters, if any, incorporate in the Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such selling Holder or underwriter, if any, may reasonable
request in writing to have included therein with respect to the name or names
of
such selling Holder, the number of shares of Common Stock or principal amount
of
Securities owned by such Holder, the plan of distribution of the Registrable
Securities (as required by Item 508 of Regulation S-K), the principal amount
of
Securities or number of shares of Common Stock being sold, the purchase price
being paid therefor, and any other terms of the offering of the Registrable
Securities to be sold in such offering;
(r) use
commercially reasonable efforts to cause all Notes to be listed on any
securities exchange or inter-dealer quotation system on which similar debt
securities issued by the Company are then listed if requested by the Majority
Holders, or to use commercially reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange or inter-dealer quotation
system on which similar equity securities issued by the Company are then listed
if requested by the underwriter or underwriters of an underwritten offering
of
Registrable Securities, if any;
(s) use
commercially reasonable efforts to cause the Registrable Securities to be rated
by the appropriate rating agencies if requested by the underwriter or
underwriters of an underwritten public offering of Registrable Securities,
if
any;
(t) otherwise
comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder; and
14
(u) cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due
diligence investigation by any underwriter and its counsel (including any
“qualified independent underwriter” that is required to be retained in
accordance with the rules and regulations of the NASD).
Without
limiting the provisions of Section 2.1(d), the Company may (as a condition
to
such Holder’s participation in the Shelf Registration) require each Holder of
Registrable Securities to furnish to the Company such information regarding
the
Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event or the discovery of any facts, each of the kind described in
Section 3(e)(ii), (iii), (iv), (v) or (vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the Prospectus
included in the Shelf Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(j)
hereof or written notice from the Company that the Shelf Registration Statement
is again effective and no amendment or supplement is needed, and, if so directed
by the Company, such Holder will deliver to the Company (at its expense) all
copies in such Holder’s possession, other than permanent file copies then in
such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
Except
as
set forth on Schedule B hereto, in the event that a Registration Default has
occurred and is continuing, the Company and the Guarantors shall not file any
Registration Statement with respect to any securities (within the meaning of
2(l) of the 0000 Xxx) of the Company or any of its subsidiaries other than
Registrable Securities.
If
any of
the Registrable Securities covered by any Shelf Registration Statement are
to be
sold in an underwritten offering, the underwriter or underwriters and manager
or
managers that will manage such offering will be selected by the Majority Holders
of such Registrable Securities included in such offering and shall be acceptable
to the Company. No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder’s Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
4. Indemnification;
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Holder, each Person who
participates as an underwriter, if any (any such Person being an “Underwriter”)
and each Person, if any, who controls any such Holder or Underwriter within
the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Shelf Registration Statement (or any amendment or
supplement thereto) pursuant to which Registrable Securities were registered
under the 1933 Act, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or supplement thereto) or
any
Issuer Free Writing Prospectus (or any amendment or supplement thereto) or
the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading;
15
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided
that
(subject to Section 4(d) below) any such settlement is effected with the written
consent of the indemnifying party; and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable and
documented fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred and documented in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under subparagraph
(i)
or (ii) above;
provided,
however,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of (A) any untrue statement or omission
or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any Holder
or Underwriter, if any, expressly for use in a Shelf Registration Statement
(or
any amendment thereto), any Prospectus (or any amendment or supplement thereto)
or any Issuer Free Writing Prospectus (or any amendment or supplement thereto),
(B) use of a Prospectus during a period when use of such Prospectus has been
validly suspended pursuant to Section 2.5 hereof, provided that such Holder
has
received prior notice of such suspension, and provided further that this clause
(B) shall continue to apply in the event that such valid suspension continues
beyond the relevant suspension period, or (C) failure of such Holder to deliver
a prospectus, as then amended or supplemented, as required by applicable laws,
provided that the Company shall have delivered to such Holder such Prospectus,
as then amended or supplemented, or (D) any loss, liability, claim, damage
or
expense which, in the case of this clause (D), is finally judicially determined
to have resulted from the gross negligence, willful misconduct or bad faith
of
any such party seeking indemnification.
(b) Each
Holder, severally, but not jointly, agrees to indemnify and hold harmless the
Company, each Underwriter, if any, and the other selling Holders, and each
of
their respective directors and officers, and each Person, if any, who controls
the Company, any Underwriter or any other selling Holder within the meaning
of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 4(a)(i)-(iii) hereof, as incurred and documented, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Shelf Registration Statement (or any amendment thereto)
or any Prospectus included therein (or any amendment or supplement thereto)
or
any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information with respect to such Holder furnished to the Company by
or
on behalf of such Holder expressly for use in the Shelf Registration Statement
(or any amendment thereto) or such Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus; provided,
however,
that no
such Holder shall be liable for any claims hereunder in excess of the amount
of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
16
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In case any such action, claim,
suit, investigation or proceeding shall be brought against any indemnified
party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and to assume the
defense thereof; provided,
however,
that in
the event that any such action, claim, suit, investigation or proceeding
includes both an indemnified party and the indemnifying party, and such
indemnified party reasonably concludes that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, or if the indemnifying
party fails to assume the defense of the action, claim, suit, investigation
or
proceeding, in either case in a timely manner, then such indemnified party
may
employ separate counsel to represent or defend it in any such action, claim,
suit, investigation or proceeding and the indemnifying party will pay the
reasonable fees and disbursements of such counsel; provided, further, that
the
indemnifying party will not be required to pay the fees and disbursements of
more than one counsel for all indemnified parties (and one separate local
counsel). In any action, claim, suit, investigation or proceeding the defense
of
which the indemnifying party assumes, the indemnified party will have the right
to participate in such litigation and to retain its own counsel at such
indemnified party’s own expense. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (A)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (B)
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 or (ii) be liable for any
settlement of any such action effected without its prior written consent (which
consent shall not be unreasonably withheld).
17
(d) Notwithstanding
clause (ii) of Section 4(c), if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and
expenses of counsel, such indemnifying party agrees that, subject to the proviso
in the last paragraph of Section 4.1(a), it shall be liable for any settlement
of the nature contemplated by Section 4(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If
the
indemnification provided for in this Section 4 is for any reason unavailable
to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as
incurred, 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 which resulted in such losses, liabilities, claims,
damages or expenses, 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, or
by
the Holders and the parties’ relative intent, knowledge, access to information
and opportunity to 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 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred and
documented by an indemnified party and referred to above in this Section 4
shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 4, no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities sold by it were offered exceeds the amount of any damages which
such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
No
Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the 0000 Xxx) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
18
For
purposes of this Section 4, each Person, if any, who controls any Purchaser
or
any Holder within the meaning of Section 15 of the 1933 Act or Section 20 of
the
1934 Act shall have the same rights to contribution as such Purchaser or the
Holder, and each director of the Company, and each Person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20
of
the 1934 Act shall have the same rights to contribution as the Company. The
obligations of the Company, each Purchaser and the Holders pursuant to this
Section 4 shall be in addition to any liability that such party may otherwise
have.
5. Miscellaneous.
5.1 Rule
144 and Rule 144A.
During
the Effectiveness Period, for so long as the Company is subject to the reporting
requirements of Section 13 or 15(d) of the 1934 Act, the Company covenants
that
it will file the reports required to be filed by it under Section 13 of 15(d)
of
the 1934 Act and the rules and regulations adopted by the SEC thereunder. If
during the Effectiveness Period the Company ceases to be so required to file
such reports, the Company covenants that it will upon the request of any Holder
of Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action
as
any Holder of Registrable Securities may reasonably request for such purpose,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act,
as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. During the Effectiveness Period,
upon
the request of any Holder of Registrable Securities, the Company will deliver
to
such Holder a written statement as to whether it has complied with such
requirements.
5.2 No
Inconsistent Agreements.
The
Company has not entered into and the Company shall not, after the date of this
Agreement, enter into any agreement which is inconsistent in any material
respect with the rights granted to the Holders of Registrable Securities in
this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not and will not for the term of this Agreement
in
any way conflict with the rights granted to the holders of any of the Company’s
other issued and outstanding securities under any such agreements.
5.3 No
Adverse Actions Affecting Registration Rights.
Subject
to the rights of the Company to invoke and maintain a Suspension Period, the
Company shall not, directly or indirectly, intentionally take any action with
respect to the Registrable Securities as a class that would adversely affect
the
ability of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
5.4 Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given unless the Company has obtained the
written consent of the Majority Holders affected by such amendment,
modification, supplement, waiver or departure. Notwithstanding the foregoing,
this Agreement may be amended by a written agreement between the Company and
the
Purchasers, without the consent of the Holders of the Registrable Securities,
in
order to cure any ambiguity or to correct or supplement any provision contained
herein, provided that no such amendment shall adversely affect the interest
of
the Holders of Registrable Securities. Each Holder of Registrable Securities
outstanding at the time of any amendment, modification, waiver or consent
pursuant to this Section 5.4, shall be bound by such amendment, modification,
waiver or consent, whether or not any notice or writing indicating such
amendment, modification, waiver or consent is delivered to such
Holder.
19
5.5 Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, registered first-class mail, facsimile, or
any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current
address given by such Holder to the Company in a Questionnaire or by means
of a
notice given in accordance with the provisions of this Section 5.5, which
address initially is the address set forth in the Purchase Agreement with
respect to the Purchasers; and (b) if to the Company, initially at the Company’s
address set forth in the Purchase Agreement, and thereafter at such other
address of which notice is given in accordance with the provisions of this
Section 5.5.
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if sent by facsimile; and on the next business day if timely delivered to an
overnight courier.
So
long
as the Notes remain outstanding, copies of all such notices, demands, or other
communications shall be concurrently delivered by the person giving the same
to
the Trustee under the Indenture, at the address specified in such
Indenture.
5.6 Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders; provided
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all
of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and
such
person shall be entitled to receive the benefits hereof.
5.7 Third
Party Beneficiaries.
Each
Purchaser (even if such Purchaser is not a Holder of Registrable Securities)
shall be a third party beneficiary to the agreements made hereunder between
the
Company, on the one hand, and the Holders, on the other hand, and shall have
the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Purchasers, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary
or
advisable to protect its rights hereunder.
20
5.8 Specific
Enforcement.
Without
limiting the remedies available to the Purchasers and the Holders, the Company
acknowledges that any failure by the Company to comply with its obligations
under Section 2.1 hereof may result in material irreparable injury to the
Purchasers or the Holders for which there is no adequate remedy at law, that
it
may not be possible to measure damages for such injuries precisely and that,
in
the event of any such failure, the Purchasers or any Holder may seek such relief
as may be required to specifically enforce the Company’s obligations under
Section 2.1 hereof; provided,
however,
that
without limiting the ability of the Initial Purchasers or any Holder to
specifically enforce such obligations, in the case of any terms of this
Agreement for which Additional Interest pursuant to Section 2.4 are expressly
provided as a remedy for a violation of such terms, such Additional Interest
shall be the sole monetary damages for such violation. .
5.9 Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, 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.
5.10 Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
5.11 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
5.12 Severability.
In the
event that 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.
5.13 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 Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
21
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
By
/s/ Xxxx
Xxxx
Name:
Xxxx Xxxx
Title:
Chairman, President and CEO
Signature
Page
Confirmed
and accepted as
of
the
date first above written:
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
/s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Director
XXXXXX
BROTHERS INC.
By:
/s/ Xxxx
Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
Title:
Senior Vice President
Signature
Page
Schedule
A
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx
Brothers Inc.
