PRIVATEBANCORP, INC. 3-5/8% Contingent Convertible Senior Notes due 2027 Registration Rights Agreement
EXHIBIT
4.3
3-5/8%
Contingent Convertible Senior Notes due 2027
March
14,
2007
RBC
Capital Markets Corporation
Xxx
Xxxxxxx Xxxxx, 000 Xxxxxxxx
Xxx
Xxxx,
XX 00000-0000
Ladies
and Gentlemen:
PrivateBancorp,
Inc., a Delaware corporation (the “Company”),
proposes to issue and sell to RBC Capital Markets Corporation (the “Initial
Purchaser”)
upon
the
terms set forth in a purchase agreement dated March 8, 2007 (the “Purchase
Agreement”),
$100,000,000 aggregate principal amount (plus up to an additional $15,000,000
principal amount) of its 3-5/8% Contingent Convertible Senior Notes due 2027
(the “Securities”).
The
Securities will be convertible into shares of the Company’s Common Stock, no par
value per share (the “Common
Stock”),
at
the
conversion price set forth in the Final Offering Memorandum dated March 8,
2007.
The Securities will be issued pursuant to an Indenture, dated as of March
14,
2007 (the “Indenture”),
between the Company and LaSalle Bank National Association, as trustee (the
“Trustee”).
As an
inducement to the Initial Purchaser to enter into the Purchase Agreement,
the
Company agrees with the Initial Purchaser, for the benefit of the Holders
(as
hereinafter defined), as follows:
1. Definitions.
(a) Capitalized
terms used herein without definition shall have the meanings ascribed to
them in
the Purchase Agreement. As used in this Agreement, the following defined
terms
shall have the following meanings:
“Additional
Interest”
has
the
meaning assigned thereto in Section 7(b) hereof.
“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”
means
this Registration Rights Agreement, as the same may be amended from time
to
time.
“Closing
Date”
means
the Closing Date as defined in the Purchase Agreement.
“Commission”
means
the Securities and Exchange Commission, or any other federal agency at the
time
administering the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“DTC”
means
The Depository Trust Company.
“Default
Date”
has
the
meaning assigned thereto in Section 7(b) hereof.
“Default
Period”
has
the
meaning assigned thereto in Section 7(b) hereof.
“Default
Termination Date”
has
the
meaning assigned thereto in Section 7(b) hereof.
“Effective
Time”
means
the time at which the Commission declares the Shelf Registration Statement
effective or at which the Shelf Registration Statement otherwise becomes
effective.
“Electing
Holder”
has
the
meaning assigned thereto in Section 3(a)(iii) hereof.
“Event
of Default”
has
the
meaning assigned thereto in Section 7(a) hereof.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Holder”
means
any person that is the record owner of Registrable Securities (and includes
any
person that has a beneficial interest in any Registrable Security in book-entry
form).
“Managing
Underwriters”
means
the investment banker(s) or manager(s) that shall administer an underwritten
offering, if any, conducted pursuant to Section 6 hereof.
“NASD
Rules”
means
the rules of the National Association of Securities Dealers, Inc., as amended
from time to time.
“Notice
and Questionnaire”
means
a
Notice of Registration Statement and Selling Securityholder Questionnaire
substantially in the form of Appendix
A
hereto.
The
term
“person”
means
an individual, partnership, corporation, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
“Prospectus”
means
the prospectus (including, without limitation, any preliminary prospectus,
any
final prospectus and any prospectus that discloses information previously
omitted from a prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Securities Act) included in the Shelf
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Shelf Registration Statement and by all other
amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after
the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
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“Registrable
Securities”
means
all or any portion of the Securities issued from time to time under the
Indenture in registered form and the shares of Common Stock issuable upon
conversion of such Securities; provided,
however,
that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
“Registration
Expenses”
shall
mean any and all expenses incident to the Company’s performance of and
compliance with this Agreement, including without limitation: (i) all
registration and filing fees and expenses (including, without limitation,
fees
and expenses (x) with respect to filings to be made pursuant to the NASD
Rules
and (y) incurred in connection with compliance with state securities or blue
sky
laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any
of the
Registrable Securities)); (ii) all expenses of any persons in preparing or
assisting in preparing, word processing, printing and distributing the Shelf
Registration Statement, the Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement; (iii)
all
rating agency fees; (iv) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws; (v) expenses
of
printing certificates for Registrable Securities in a form eligible for deposit
with DTC; (vi) the fees and disbursements of the Trustee and its counsel;
(vii) the fees and disbursements of counsel for the Company; and (viii) the
fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or “cold comfort” letters required
by or incident to such performance and compliance.
“Registration
Period”
has
the
meaning assigned thereto in Section 2(b)(i) hereof.
“Restricted
Security”
means
any Security or share of Common Stock issuable upon conversion thereof except
any such Security or share of Common Stock that (i) has been effectively
registered under the Securities Act and sold in a manner contemplated by
the
Shelf Registration Statement, (ii) has been transferred in compliance with
Rule 144 under the Securities Act (or any successor provision thereto, but
not Rule 144A under the Securities Act) or is transferable pursuant to
paragraph (k) of such Rule 144 (or any successor provision thereto,
but not Rule 144A under the Securities Act), or (iii) has otherwise been
transferred and a new Security or 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 3.5 of the Indenture.
“Rule
430B Information”
means
any information included in a Prospectus that was omitted from the Shelf
Registration Statement at the time it became effective but that is deemed
to be
part of and included in such Shelf Registration Statement pursuant to Rule
430B
under the Securities Act.
“Rules
and Regulations”
means
the published rules and regulations of the Commission promulgated under the
Securities Act or the Exchange Act, as in effect at any relevant
time.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shelf
Registration Statement”
means
a
“shelf” registration statement of the Company (which may include an automatic
shelf registration statement if the Company is a well-known seasoned issuer)
filed under the Securities Act providing for the registration of, and the
sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar
rule that may be adopted by the Commission, filed by the
3
Company
pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such registration
statement.
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939, as amended, or any successor thereto, and
the
rules, regulations and forms promulgated thereunder, as the same shall be
amended from time to time.
The
term
“underwriter”
means
any underwriter of Registrable Securities in connection with an offering
thereof
under the Shelf Registration Statement.
“Underwritten
Offering”
has
the
meaning assigned thereto in Section 6 hereof.
(b) Wherever
there is a reference in this Agreement to a percentage of the “principal
amount” of Registrable Securities or to a percentage of Registrable
Securities, Common Stock shall be treated as representing the principal amount
of Securities that was surrendered for conversion or exchange in order to
receive such number of shares of Common Stock.
2. Shelf
Registration.
(a) The
Company shall, no later than 90 calendar days following the Closing Date,
file
with the Commission a Shelf Registration Statement relating to the offer
and
sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement and, thereafter, shall use its
reasonable efforts to cause such Shelf Registration Statement to be declared
effective under the Securities Act as soon as practicable and in any event
no
later than 180 calendar days following the Closing Date; provided,
however,
that no
Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus forming a part thereof for
resales of Registrable Securities unless such Holder is an Electing
Holder.
(b) The
Company shall use its reasonable efforts:
(i) to
keep
the Shelf Registration Statement continuously effective in order to permit
the
Prospectus forming a part thereof to be usable by Holders until the earliest
of:
(A) the date when all Registrable Securities covered by the Shelf
Registration Statement have been sold in accordance with the Shelf Registration
Statement; (B) the date when the Holders are able to sell or transfer to
the
public all Registrable Securities immediately without restriction pursuant
to
Rule 144 of the Securities Act, or any successor rule thereto (assuming for
the purposes hereof that the Holders are not Affiliates of the Company);
and (C)
two years after the last day of original issuance of the Securities (the
“Effective
Date”)
(such
period being referred to herein as the “Registration
Period”).
The
Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the Registration Period if
the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any of such
Registrable Securities during that period, unless such action is (1) required
by
applicable law and the Company thereafter promptly complies with the
requirements of Section 3(j) below or (2) permitted pursuant to
Section 2(c) below;
4
(ii) after
the
Effective Time, promptly upon the request of any Holder that is not then
an
Electing Holder, to take any action reasonably necessary to enable such Holder
to use the Prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to identify
such
Holder as a selling securityholder in the Shelf Registration Statement as
contemplated by Section 3(a)(ii) hereof; provided,
however,
that
nothing in this subparagraph shall relieve such Holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(ii) hereof; and
(iii) if
at any
time the Securities, pursuant to Article XII of the Indenture, are
convertible into securities other than Common Stock, to cause, or to cause
any
successor under the Indenture to cause, such securities to be included in
the
Shelf Registration Statement no later than the date on which the Securities
may
then be convertible into such securities.
(c) The
Company may suspend the use of the Prospectus for a period not to exceed
45 days
in any 90-day period or an aggregate of 90 days in any 365-day period if
the
Board of Directors of the Company shall have determined in good faith that
because of valid business reasons (not including avoidance of the Company’s
obligations hereunder), including the acquisition or divestiture of assets,
pending corporate developments, public filings with the Commission and similar
events, it is in the best interests of the Company to suspend such use, and
prior to suspending such use the Company provides the Holders with written
notice of such suspension, which notice need not specify the nature of the
event
giving rise to such suspension.
3. Registration
Procedures.
In
connection with the Shelf Registration Statement, the following provisions
shall
apply:
(a) (i)
Not
less
than 30 calendar days prior to the Effective Time, the Company shall mail
the
Notice and Questionnaire to the Holders. No Holder shall be entitled to be
named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no Holder shall be entitled to use the Prospectus for
resales of Registrable Securities at any time, unless such Holder has returned
a
completed and signed Notice and Questionnaire to the Company by the deadline
for
response set forth therein; provided, however, Holders shall have at least
28
calendar days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and Questionnaire
to the Company and still be named as a selling securityholder in the Shelf
Registration Statement at the Effective Time.
(ii) After
the
Effective Time, the Company shall, upon the request of any Holder that is
not
then an Electing Holder, promptly send a Notice and Questionnaire to such
Holder. The Company shall not be required to take any action to name such
Holder
as a selling securityholder in the Shelf Registration Statement or to enable
such Holder to use the Prospectus for resales of Registrable Securities until
such Holder has returned a completed and signed Notice and Questionnaire
to the
Company. Upon receipt of a completed and signed Notice and Questionnaire,
the
Company shall as promptly as practicable thereafter, and in any event upon
the
later of (A) ten (10) days after the date of receipt of such Notice and
Questionnaire or (B) if the use of the Prospectus has been suspended by the
Company under Section 2(c) hereof at the time of receipt of the Notice and
Questionnaire, ten (10) days after the expiration of the period during which
the
use of the Prospectus is suspended, (1) if required by applicable law, file
with the Commission a post-effective amendment to the Shelf Registration
Statement or prepare and file a supplement to the Prospectus or file any
other
required document so that the Holder delivering such Notice and
5
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 Registrable Securities in accordance with
applicable law and, (2) if the Company shall file a post-effective amendment
to
the Shelf Registration Statement, use its reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities Act
as
promptly as is practicable, but in any event by the date that is forty-five
(45)
days after the date such post-effective amendment is required by this clause
to
be filed. Notwithstanding the foregoing, the Company shall not be required
to
file more than one post-effective amendment to the Shelf Registration Statement
solely for the purpose of naming a Holder as a selling securityholder in
the
Shelf Registration Statement during any calendar quarter; provided, however,
that the Shelf Registration Statement shall include the disclosure required
by
Rule 430B under the Securities Act in order to enable the Company to add
selling
securityholders to the Shelf Registration Statement pursuant to the filing
of
prospectus supplements; and provided, further, that if the Company is then
able
to name a selling securityholder to the Shelf Registration Statement by means
of
either a supplement to the related prospectus or a post-effective amendment,
the
Company shall file a prospectus supplement to name the Holder as a selling
securityholder in the Shelf Registration Statement.
(iii) The
term
“Electing
Holder”
shall
mean any Holder that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(i) or 3(a)(ii)
hereof.
(b) Before
filing any Shelf Registration Statement or Prospectus or any amendments or
supplements (other than supplements or post-effective amendments solely for
the
purpose of naming one or more Electing Holders as selling securityholders)
thereto with the Commission, the Company shall furnish to the Initial Purchaser
and its counsel copies of all such documents proposed to be filed and use
reasonable efforts to reflect in each such document when so filed with the
Commission such comments as the Initial Purchaser reasonably shall propose
within five Business Days of the delivery of such copies to the Initial
Purchaser. The Company shall (i) if an Electing Holder so requests, furnish
to
each Electing Holder, prior to the Effective Time, a copy of the Shelf
Registration Statement initially filed with the Commission, and shall furnish
to
such Holders, prior to the filing thereof with the Commission, copies of
each
amendment thereto and each amendment or supplement, if any, to the Prospectus
included therein, and shall use its reasonable efforts to reflect in each
such
document, at the Effective Time or when so filed with the Commission, as
the
case may be, such comments as such Holders and their respective counsel
reasonably may propose and (ii) name the Electing Holders as selling
securityholders in the Shelf Registration Statement.
(c) The
Company shall promptly take such action as may be necessary so that (i) the
Shelf Registration Statement and any amendment thereto and the Prospectus
and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all material
respects with the Securities Act, the Exchange Act and the Rules and
Regulations, (ii) the 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) the Prospectus and
any
amendment or supplement thereto, does not at any time during the Registration
Period include an untrue statement of a material fact or omit to state a
material fact
6
necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading.
(d) The
Company shall promptly notify each Electing Holder in writing:
(i) when
a
Shelf Registration Statement and any amendment thereto has been filed with
the
Commission and when a Shelf Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of
any
request by the Commission for amendments or supplements to the Shelf
Registration Statement or the Prospectus or for additional information relating
thereto;
(iii) of
the
issuance by the Commission of any stop order suspending the effectiveness
of the
Shelf Registration Statement or the initiation of any proceedings for such
purpose;
(iv) if
the
Company receives any notification with respect to the suspension of the
qualification of the securities included in the Shelf Registration Statement
for
sale in any jurisdiction or the initiation of any proceeding for such purpose;
and
(v) of
the
happening of any event or the existence of any state of facts that requires
the
making of any changes in the Shelf Registration Statement or the Prospectus
so
that, as of such date, the Shelf Registration Statement and the Prospectus
do
not contain an untrue statement of a material fact and do not omit to state
a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading.
A
notice
pursuant to clauses (ii) through (v) above may be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made or such other action is taken to remedy the fact
or
event that led to the suspension of the use of the Prospectus.
(e) The
Company shall use commercially reasonable efforts: (i) to prevent the issuance
of any order suspending the effectiveness of the Shelf Registration Statement;
(ii) if issued, to obtain the withdrawal of any such order at the earliest
possible time; and (iii) to provide, as promptly as reasonably practicable,
notice to each Electing Holder of the withdrawal of such order.
(f) If
an
Electing Holder so requests, the Company shall furnish to such Electing Holder,
without charge, at least one copy of the Shelf Registration Statement and
all
post-effective amendments thereto, including financial statements and schedules,
and all reports, other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration Statement.
(g) The
Company shall, during the Registration Period, deliver to each Electing Holder,
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Electing Holder
may
reasonably request. The Company consents (except during the periods specified
in
Section 2(c) above or during the continuance of any event described in
clauses (ii) through (v) of Section 3(d) above) to the use of the
Prospectus and any amendment or supplement thereto by each of the Electing
Holders in connection
7
with
the
offering and sale of the Registrable Securities covered by the Prospectus
and
any amendment or supplement thereto during the Registration Period.
(h) The
Company shall: (i) prior to any offering of Registrable Securities pursuant
to
the Shelf Registration Statement, register or qualify or cooperate with the
Electing Holders and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and
sale
under the securities or “blue sky” laws of such jurisdictions within the United
States as any Electing Holder may reasonably request; (ii) keep such
registrations or qualifications in effect and comply with such laws so as
to
permit the continuance of offers and sales in such jurisdictions for so long
as
may be necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement; and (iii) take any and all other actions necessary
or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided,
however,
that in
no event shall the Company be obligated to (A) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise
be
required to so qualify but for this Section 3(h) or (B) file any general
consent to service of process in any jurisdiction where it is not then so
subject.
(i) Except
with respect to Registrable Securities in book-entry only form, the Company
shall cooperate with the Electing Holders to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold
pursuant to the Shelf Registration Statement, which shall be free of any
restrictive legends and in such denominations and registered in such names
as
the Electing Holders may request a reasonable period of time prior to sales
of
such Registrable Securities pursuant to the Shelf Registration
Statement.
(j) Upon
the
occurrence of any fact or event contemplated by clauses
(ii) through (v) of Section 3(d) above during the Registration
Period, the Company shall promptly prepare a post-effective amendment to
the
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document or take such other action
so
that, (A) with respect to clauses (ii) through (iv) of Section 3(d), the
fact or
event which has led to the suspension of the use of the Prospectus is remedied,
and (B) with respect to clause (v) of Section 3(d), as thereafter delivered
to
purchasers of the Registrable Securities included therein, the Prospectus
will
not include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company provides notice
to
the Electing Holders of the occurrence of any fact or event contemplated
by
clauses (ii) through (v) of Section 3(d) above along with an
instruction to suspend the use of the Prospectus, the Electing Holder shall
suspend the use of the Prospectus until the requisite changes to the Prospectus
have been made or such other action is taken to remedy the fact or event
that
led to the suspension of the use of the Prospectus.
(k) Not
later
than the Effective Time, the Company shall provide a CUSIP number for the
Registrable Securities that are debt securities.
(l) The
Company will comply with all Rules and Regulations to the extent and so long
as
they are applicable to the Shelf Registration Statement and will make generally
available to its securityholders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 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
8
Registration
Statement, which statement shall cover such 12-month period. For purposes
of
this paragraph, the term “effective date” with respect to the Shelf Registration
Statement shall have the meaning assigned to it in paragraph (c) of Rule
158 (or
any successor provision thereto) under the Securities Act.
(m) Not
later
than the Effective Time, the Company shall cause the Indenture to be qualified
under the Trust Indenture Act. In connection with such qualification, the
Company shall cooperate with the Trustee and the Holders (as defined in the
Indenture) 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 Trust Indenture
Act; and the Company shall execute, and shall use its best efforts to cause
the
Trustee 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 3(m)
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.
(n) The
Company shall not permit any securities other than Registrable Securities
to be
included in the Shelf Registration Statement.
(o) The
Company shall enter into such customary agreements (including an underwriting
agreement in customary form in the event of an underwritten offering) and
take
all other appropriate and reasonable action in order to expedite and facilitate
the registration and disposition of the Registrable Securities.
(p) The
Company shall: (i) make available for inspection by the Electing Holders,
any
underwriter participating in any disposition pursuant to the Shelf Registration
Statement, and any attorney, accountant or other agent retained by such Electing
Holders or any such underwriter, at reasonable times and in a reasonable
manner,
all relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries; and (ii) cause the Company’s
officers, directors and employees to supply all information reasonably requested
by such Electing Holders or any such underwriter, attorney, accountant or
agent
in connection with the Shelf Registration Statement, in each case, as is
customary for similar due diligence examinations; provided that
such
inspection and information gathering shall, to the greatest extent possible,
be
coordinated by one counsel designated by and on behalf of the Electing Holders
and other parties; provided,
further,
that
such persons shall, at the Company’s request, first agree in writing with the
Company that any information that is reasonably and in good faith designated
by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used
solely
for the purposes of exercising rights under this Agreement, unless such
disclosure is required by law (including without limitation, in connection
with
the disposition of Registrable Securities pursuant to the Shelf Registration
Statement) or is made in connection with a court proceeding, or such records,
information or documents become available to the public generally or lawfully
through a third party without an accompanying obligation of
confidentiality.
(q) The
Company will use its reasonable efforts to cause the Common Stock issuable
upon
conversion of the Registrable Securities to be listed on the Nasdaq Global
Select Market or other stock exchange or trading system on which the Common
Stock primarily trades on or prior to the 60th
calendar
day following the Closing Date.
9
(r) In
the
event that any broker-dealer registered under the Exchange Act shall underwrite,
participate as a member of an underwriting syndicate or selling group or
assist
in the distribution of any Registrable Securities covered by the Shelf
Registration Statement, whether as an Electing Holder or as an underwriter,
a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company shall assist such broker-dealer in complying with the requirements
of the NASD Rules, including, without limitation, by (A) if the NASD Rules
shall
so require, engaging a “qualified independent underwriter” (as defined in
Rule 2720 of the NASD Rules (or any successor provision thereto)) to
participate in the preparation of the registration statement relating to
such
Registrable Securities, to exercise usual standards of due diligence in respect
thereto and to recommend the public offering price of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof, and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements
of the
NASD Rules.
(s) The
Company shall use its reasonable efforts to take all other steps necessary
to
effect the registration, offering and sale of the Registrable Securities
covered
by the Shelf Registration Statement contemplated hereby.
(t) The
Company may require each Electing Holder to furnish to the Company such
information regarding the Electing Holder and the distribution of the
Registrable Securities as the Company may from time to time reasonably request
for inclusion in the Shelf Registration Statement, and the Company may exclude
from such registration the Registrable Securities of any Electing Holder
that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
4. Registration
Expenses.
The
Company will bear all Registration Expenses incurred in connection with the
performance of its obligations hereunder. The Company will also bear or
reimburse the Electing Holders for the reasonable fees and disbursements
of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, as counsel for
the Holders in connection with the Shelf Registration Statement. Each Electing
Holder shall pay all underwriting discounts and commissions and transfer
taxes,
if any, and, subject to the preceding sentence, the expenses of its own counsel,
relating to the sale or disposition of such Electing Holder’s Registrable
Securities pursuant to the Shelf Registration Statement.
5. Indemnification
and Contribution.
(a) Indemnification
by the Company.
The Company agrees to indemnify and hold harmless each Electing Holder and
each
person, if any, who controls any Electing Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by
any untrue statement or alleged untrue statement of a material fact contained
in
the Shelf Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such
10
untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Electing Holder furnished to the Company in writing
by such Electing Holder expressly for use in the Shelf Registration Statement,
any amendment thereof, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto; and provided,
further,
that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Holder who failed to deliver a Prospectus
(as then amended or supplemented, provided by the Company to the Holders
in the
requisite quantity and on a timely basis to permit proper delivery on or
prior
to resale) to the person asserting any loss, claim, damage, liability or
expense
caused by the untrue statement or alleged untrue statement of a material
fact
contained in any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, if such material misstatement or omission or alleged material
misstatement or omission was cured, as determined by a court of competent
jurisdiction in a decision not subject to further appeal, in such Prospectus
and
such Prospectus was required by law to be delivered at or prior to the written
confirmation of the resale of such Registrable Securities to such person.
In
connection with any underwritten offering permitted hereunder, the Company
will
also indemnify the underwriters, their officers and directors and each person
who controls such underwriters (within the meaning of the Securities Act
and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Electing Holders, if requested by such Electing
Holders.
(b) Indemnification
by the Electing
Holders.
Each Electing Holder agrees, severally and not jointly, to indemnify and
hold
harmless the Company, the directors of the Company, the officers of the Company
who sign the Shelf Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement
or
any amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, but only with reference to information
relating to such Electing Holder furnished to the Company in writing by such
Electing Holder expressly for use in the Shelf Registration Statement, any
amendment thereof, any preliminary prospectus, the Prospectus or any amendments
or supplements thereto. In no event shall the liability of any Electing Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Electing Holder from the sale of such Electing Holder’s Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) pursuant to the Shelf Registration Statement.
(c) Indemnification
Procedures.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 5, such person (the “indemnified
party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“indemnifying
party”)
in
writing and the indemnifying party, upon request of the indemnified party,
shall
retain counsel reasonably satisfactory to the indemnified party to represent
the
indemnified party and any others the indemnifying party may designate in
such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
11
party
shall have the right to retain its own counsel, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
respect
of the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for
all indemnified parties, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Electing
Holders and such control persons of any Electing Holders, such firm shall
be
designated in writing by the Electing Holders holding a majority of the
Registrable Securities covered by the Shelf Registration Statement. In the
case
of any such separate firm for the Company and such directors, officers and
control persons of the Company, such firm shall be designated in writing
by the
Company. The indemnifying party shall not be liable for any settlement of
any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss
or
liability 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 the reasonable
fees
and expenses of counsel as contemplated by the second and third sentences
of
this paragraph, 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 of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been
sought hereunder by such indemnified party, unless such settlement (x) includes
an unconditional release of such indemnified party from all liability on
claims
that are the subject matter of such 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.
(d) Contribution
Agreement.
To the extent the indemnification provided for in paragraph (a) or paragraph
(b)
of this Section 5 is unavailable to an indemnified party or insufficient
in
respect of any losses, claims, damages or liabilities referred to therein,
then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and the Electing Holders on the other hand shall
be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company or by the
Electing Holders and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Electing Holders’ respective obligations to contribute pursuant to this
Section 5(d) are several in proportion to the respective principal amount
12
of
Registrable Securities of each such Electing Holder that were registered
pursuant to the Shelf Registration Statement, and not joint.
(e) Contribution
Amounts.
The Company and the Electing Holders agree that it would not be just or
equitable if contribution pursuant to Section 5(d) were determined by
pro
rata
allocation (even if the Electing 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 Section 5(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
and
liabilities referred to in Section 5(d) shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 5,
no Electing Holder shall be required to contribute any amount in excess of
the
amount by which the total price at which Registrable Securities sold by such
Electing Holder exceeds the amount of any damages that such Electing Holder
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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of
such fraudulent misrepresentation.
(f) Remedies
Not Exclusive.
The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies that may otherwise be available to any indemnified
party at law or in equity.
(g) Survival
of Provisions.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of any Electing Holder or any person controlling any Electing Holder, or
by or
on behalf of the Company, its officers or directors or any person controlling
the Company and (iii) any sale of the Registrable Securities pursuant to
the Shelf Registration Statement.
6. Underwritten
Offering.
With
the prior written agreement of the Company, any Holder who desires to do
so may
sell Registrable Securities (in whole or in part) in a registration in which
such securities are sold to an underwriter for reoffering to the public pursuant
to the Shelf Registration Statement (an “Underwritten
Offering”).
Upon
receipt of such a request, the Company shall provide all Holders written
notice
of the request, which notice shall inform such Holders that they have the
opportunity to participate in the Underwritten Offering. In any such
Underwritten Offering, the Managing Underwriters will be selected by, and
the
underwriting arrangements with respect thereto (including the size of the
offering) will be approved by, the holders of a majority of the Registrable
Securities to be included in such offering; provided,
however,
that
such Managing Underwriters and underwriting arrangements must be reasonably
satisfactory to the Company. No Holder may participate in any Underwritten
Offering contemplated hereby unless (a) such Holder agrees to sell such Holder’s
Registrable Securities to be included in the Underwritten Offering in accordance
with any approved underwriting arrangements, (b) such Holder completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under
the
terms of such approved underwriting arrangements, and (c) if such Holder
is not
then an Electing Holder, such Holder returns a completed and signed Notice
and
Questionnaire to the Company in accordance with Section 3(a)(ii) hereof
within a reasonable amount of time before such Underwritten Offering.
Notwithstanding the foregoing, upon receipt of a request from the Managing
Underwriters or a
13
representative
of holders of a majority of the Registrable 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 30 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.
7. Additional
Interest.
(a) The
occurrence of any of the following will constitute an “Event
of Default”
hereunder:
(i) the
Company fails to file a Shelf Registration Statement with the Commission
on or
prior to the 90th day following the Closing Date;
(ii) such
Shelf Registration Statement is not declared effective by the Commission
on or
prior to the 180th day following the Closing Date;
(iii) the
Company fails to file a post-effective amendment or prospectus supplement
to the
Shelf Registration Statement, or the post-effective amendment is not declared
effective, within the periods required by Section 3(a)(ii) hereof;
(iv) after
effectiveness, subject to Section 2(c), the Shelf Registration Statement
fails
to be effective or useable by the Holders without being succeeded within
seven
days by a post-effective amendment or a report filed with the Commission
pursuant to the Exchange Act that cures the failure to be effective or useable;
or
(v) the
Shelf
Registration Statement ceases to be effective (or the Company prevents or
restricts Holders from effecting sales pursuant thereto) for more than 45
days,
whether or not consecutive, in any 90-day period, or for more than 90 days,
whether or not consecutive, during any 365-day period.
(b) Upon
the
occurrence of any Event of Default, the Company shall be required to pay
additional interest (“Additional
Interest”)
at a
rate per annum equal to one-quarter of one percent (0.25%) of the aggregate
principal amount of Registrable Securities, from and including the Default
Date
(as hereinafter defined) to but excluding the Default Termination Date (as
hereinafter defined) (the “Default
Period”);
provided,
however,
that if
the Default Period exceeds 90 days, from and after the 91st
day
after the Default Date such Additional Interest shall accrue at a rate per
annum
equal to one-half of one percent (0.50%) of the aggregate principal amount
of
Registrable Securities. The term “Default
Date”
shall
mean: (i) with respect to clause (i) of Section 7(a) above, the 91st
calendar
day following the Closing Date; (ii) with respect to clause (ii) of Section
7(a)
above, the 181st
calendar
day following the Closing Date; (iii) with respect to clause (iii) of Section
7(a) above, the first day following the date upon which the post-effective
amendment was required to be filed or declared effective, as the case may
be,
pursuant to Section 3(a)(ii) above; (iv) with respect to clause (iv) of Section
7(a) above, the 8th
day
after the date the Shelf Registration Statement fails to be effective or
useable; and (v) with respect to clause (v) of Section 7(a) above, the
46th
day of
such 90-day period or the 91st
day of
such 365-day period, as the case may be. The term “Default
Termination Date”
shall
mean (x) with respect to clauses (i) through (iii) of Section
14
7(a)
above, the date the Shelf Registration Statement or the post-effective
amendment, as the case may be, is either so filed or so filed and subsequently
declared effective, as the case may be, and (y) with respect to clauses
(iv) and (v) of Section 7(a) above, the date the Shelf Registration Statement
again becomes effective or the Holders of Registrable Securities are again
able
to make sales under the Shelf Registration Statement. Notwithstanding the
foregoing, no Additional Interest shall accrue as to any Registrable Security
from and after the earlier of (1) the date such security is no longer a
Registrable Security and (2) the expiration of the Registration
Period.
(c) Any
amounts to be paid as Additional Interest shall be paid semi-annually in
arrears, with the first semi-annual payment due on the first Interest Payment
Date (as defined in the Indenture), as applicable, following the applicable
Default Date.
(d) If
a
Holder has converted some or all of its Notes into Common Stock, the Holder
will
not be entitled to receive any Additional Interest with respect to such Common
Stock or the principal amount of the Notes that have been so converted. In
addition, in no event will Additional Interest be payable in connection with
an
Event of Default relating to a failure to register the Common Stock deliverable
upon conversion of the Notes. For avoidance of doubt, if the Company fails
to
register both the Notes and the Common Stock deliverable upon conversion
of the
Notes, then Additional Interest will be payable in connection with the Event
of
Default relating to the failure to register the Notes.
(e) All
obligations of the Company set forth in this Section 7 that are outstanding
with
respect to any Registrable Securities at the time such security ceases to
be a
Registrable Security shall survive until such time as all such obligations
with
respect to such Registrable Security shall have been satisfied in
full.
(f) Except
as
provided in Section 8(a) hereof, the Additional Interest shall be the
exclusive monetary remedy available to the Holders for Events of Default.
In no
event shall the Company be required to pay Additional Interest in excess
of the
applicable maximum amount of one-half of one percent (0.5%) set forth above,
regardless of whether one or multiple Events of Default exist.
8. Miscellaneous.
(a) Specific
Performance.
The
parties hereto acknowledge that there would be no adequate remedy at law
if the
Company fails to perform any of its obligations hereunder and that the Initial
Purchaser and the Holders from time to time may be irreparably harmed by
any
such failure, and accordingly agree that the Initial Purchaser and such Holders,
in addition to any other remedy to which they may be entitled at law or in
equity and without limiting the remedies available to the Electing Holders
under
Section 7 hereof, shall be entitled to compel specific performance of the
obligations of the Company under this Agreement in accordance with the terms
and
conditions of this Agreement, in any court of the United States or any State
thereof having jurisdiction.
(b) Amendments
and Waivers.
The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to departures from the provisions hereof may not be given,
except by the Company in writing and with the consent of the Holders of a
majority in principal amount of the Registrable Securities then outstanding
(provided that holders of Common Stock issued upon conversion of Securities
shall not be deemed holders of Common Stock,
15
but
shall
be deemed to be holders of the aggregate principal amount of Securities from
which such Common Stock was converted). Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(b).
(c) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
given as provided in the Indenture.
(d) Parties
in Interest.
The
parties to this Agreement intend that all Holders of Registrable Securities
shall be entitled to receive the benefits of this Agreement and that any
Electing Holder shall be bound by the terms and provisions of this Agreement
by
reason of such election with respect to the Registrable Securities which
are
included in a Shelf Registration Statement. All the terms and provisions
of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be
enforceable by the respective successors and assigns of the parties hereto
and
any Holder from time to time of the Registrable Securities. In the event
that
any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise,
such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed
to
have agreed to be bound by and to perform all of the terms and provisions
of
this Agreement to the aforesaid extent.
(e) Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
(f) Headings.
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
(g) Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN SUCH STATE.
(h) Partial
Enforceability.
The
invalidity or unenforceability of any section, paragraph or provision of
this
Agreement shall not affect the validity or enforceability of any other section,
paragraph or provision hereof. If any section, paragraph or provision of
this
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes)
as
are necessary to make it valid and enforceable.
(i) Survival.
The
respective indemnities, agreements, representations, warranties and other
provisions set forth in this Agreement or made pursuant hereto shall remain
in
full force and effect, regardless of any investigation (or any statement
as to
the results thereof) made by or on behalf of any Electing Holder, any director,
officer or partner of such Holder, or any controlling person of any of the
foregoing, and shall survive the transfer and registration of the Registrable
Securities of such Holder.
[Remainder
of page intentionally left blank]
16
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and you.
|
|
||
| By: | /s/ Xxxxxx Xxxxxxx |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | CFO |
|
Accepted
as of the date hereof
RBC
CAPITAL MARKETS CORPORATION
|
|
|
| By: | /s/ Xxxxxxx Xxxxxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxxxxx | ||
| Title: | Managing Director |
17
Appendix
A
FORM
OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The
undersigned beneficial holder of 3-5/8% Contingent Convertible Senior Notes
Due
2027 (the "Notes") of PrivateBancorp, Inc. (the "Company") or common stock,
no
par value per share (the "common stock" and, together with the Notes, the
"Registrable Securities"), of the Company issuable upon conversion of the
Notes
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the "Commission") a registration statement on
Form S-3 (the "Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Registrable Securities in accordance with the terms of the
Registration Rights Agreement, dated as of March 14, 2007 (the
"Registration Rights Agreement"), between the Company and the initial purchaser
named therein. A copy of the Registration Rights Agreement is available from
the
Company upon request at the address set forth below. Each capitalized term
not
otherwise defined in this offering memorandum shall have the meaning ascribed
thereto in the Registration Rights Agreement.
Each
beneficial owner of Registrable Securities is entitled to the benefits of
the
Registration Rights Agreement. In order to sell or otherwise dispose of any
Registrable Securities pursuant to the Registration Statement, a beneficial
owner of Registrable Securities generally will be required to be named as
a
selling securityholder in the related prospectus, deliver a prospectus to
purchasers of Registrable Securities and be bound by those provisions of
the
Registration Rights Agreement applicable to such beneficial owner (including
some indemnification provisions, as described below). Beneficial
owners that do not complete this Notice and Questionnaire and deliver it
to the
Company as provided below will not be named as selling securityholders in
the
prospectus and therefore will not be permitted to sell any Registrable
Securities pursuant to the Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire at least two business days prior to the effectiveness of the
Registration Statement so that such beneficial owners may be named as selling
securityholders in the related prospectus at the time of effectiveness;
provided, however, that beneficial owners shall have at least 28 calendar
days
from [date of original mailing of Notice and Questionnaire] to return a
completed and signed Notice and Questionnaire. Upon receipt of a completed
Notice and Questionnaire, together with such other information as the Company
may reasonably request, from a beneficial owner after the effectiveness of
the
shelf registration statement the Company will file within 5 business days
such
amendments to the shelf registration statement or supplements to the related
prospectus as are necessary to permit such beneficial owner to deliver such
prospectus to purchasers of Registrable Securities, subject to the Company's
right to suspend the use of the prospectus, provided that the Company will
not
be required to file a post-effective amendment more than one time in any
calendar quarter for all beneficial owners. The Company has agreed to pay
liquidated damages pursuant to the Registration Rights Agreement under some
circumstances as set forth therein.
Certain
legal consequences arise from being named as a selling securityholder in
the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their
own
securities law counsel regarding the
consequences
of being named or not being named as a selling securityholder in the
Registration Statement and the related prospectus.
NOTICE
The
undersigned beneficial owner (the "Selling Securityholder") of Registrable
Securities hereby gives notice to the Company of its intention to sell or
otherwise dispose of Registrable Securities beneficially owned by it and
listed
below in Item 3 (unless otherwise specified under Item 3) pursuant to
the Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms
and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
Pursuant
to the Registration Rights Agreement, the undersigned has agreed to indemnify
and hold harmless the Company's directors and officers and each person, if
any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against some losses arising in connection
with statements concerning the undersigned made in the Registration Statement
or
the related prospectus in reliance upon the information provided in this
Notice
and Questionnaire.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
| 1. | (a) |
Full legal name of Selling Securityholder:
_______________________________________________________________________________________
|
|
(b)
|
Full
legal name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in Item 3 below are
held:
_______________________________________________________________________________________
|
|
(c)
|
Full
legal name of the broker-dealer or other third party through
which
Registrable Securities listed in Item 3 below are held:
_______________________________________________________________________________________
|
|
(d)
|
Full
legal name of Depository Trust Company participant (if applicable
and if
not the same as (b) above) through which Registrable Securities
listed in Item 3 below are held:
_______________________________________________________________________________________
|
|
(e)
|
If
Selling Securityholder is not, and is not a wholly-owned subsidiary
of a
company that is, required to file periodic and other reports
(e.g.,
Forms 10-K, 00-X, 0-X) with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
identify any natural person(s) who exercise
|
2
|
|
voting
power and investment control over any Registrable Securities
and provide
each such person's address:
_______________________________________________________________________________________
|
****
PLEASE NOTE THAT THE SECURITIES AND EXCHANGE COMMISSION REQUIRES THAT THESE
NATURAL PERSONS BE NAMED IN THE PROSPECTUS ****
|
2.
|
Address
for Notices to Selling Securityholder:
______________________________________________________________________________________________
|
Telephone:
Email:
Fax:
Contact
Person:
|
3.
|
Beneficial
Ownership of Registrable
Securities:
|
|
(a)
|
Type
and Principal Amount or number of shares of Registrable Securities
beneficially owned:
_______________________________________________________________________________________
|
|
(b)
|
CUSIP
No(s). of such Registrable Securities beneficially owned:
_______________________________________________________________________________________
|
Unless
otherwise indicated in the space provided below, all Notes and all shares
of
common stock listed in response to Item 3 (a) above, and all shares of
common stock issuable upon conversion of the Notes listed in response to
Item 3(a) above, will be included in the Registration Statement. If the
undersigned does not wish all such Notes and/or shares of common stock
to be so
included, please indicate below the principal amount or the number of shares
to
be included:
_________________________________________________________________________________
_________________________________________________________________________________
|
4.
|
Beneficial
Ownership of other Company securities owned by the Selling
Securityholder:
|
Except
as set forth below in this Item 4, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
3
|
(a)
|
Type
and Amount of other Company securities beneficially owned by
the Selling
Securityholder:
_______________________________________________________________________________________
|
|
(b)
|
CUSIP
No(s) of such other Company securities beneficially owned:
_______________________________________________________________________________________
|
|
5.
|
Relationship
with the Company:
|
Except
as set forth below, neither the undersigned nor any of its affiliates,
officers,
directors or principal equity holders (5% or more) has held any, position
or
office or has had any other material relationship with the Company (or
its
predecessors or affiliates) during the past three years.
State
any
exceptions here:
_________________________________________________________________________
______________________________________________________________________________________________
| 6. |
(a)
|
Is
the Selling Securityholder a registered broker-dealer?
_______________________________________________________________________________________
|
|
(b)
|
If
the answer to Item 6 (a) is yes, did the Selling Securityholder
acquire the Registrable Securities as compensation for placement
agent or
investment banking services to the Company (if so, please
describe)?
_______________________________________________________________________________________
|
|
(c)
|
Is
the Selling Securityholder an affiliate of a registered broker-dealer(s)
(For purposes of this response, an affiliate of, or person affiliated
with, a specified person, is a person that directly, or indirectly
through
one or more intermediaries, controls or is controlled by, or
is under
common control with, the person specified.)
_______________________________________________________________________________________
|
|
(d)
|
If
the answer to Item 6(c) is yes, identify the registered
broker-dealer(s) and describe the nature of the affiliation
(s):
_______________________________________________________________________________________
|
|
(e)
|
If
the answer to Item 6(c) is yes, did the Selling Securityholder
acquire the Registrable Securities in the ordinary course of
business (if
not, please explain)?
_______________________________________________________________________________________
|
4
|
(f)
|
If
the answer to Item 6(c) is yes, did the Selling Securityholder, at
the time of purchase of the Registrable Securities, have any
agreements,
understandings or arrangements, directly or indirectly, with
any person to
distribute the Registrable Securities (if yes, please
explain)?
_______________________________________________________________________________________
_______________________________________________________________________________________
|
NOTE:
The
Company is required to identify you as an underwriter in the Registration
Statement and related Prospectus if either:
(i)
the
undersigned is a registered broker-dealer and received its Registrable
Securities other than as transaction-based compensation, or
(ii)
the
undersigned is an affiliate of a broker-dealer who did not buy Registrable
Securities in the ordinary course of business and at the time of your purchase
had an agreement or understanding, directly or indirectly, with any person
to
distribute the Registrable Securities.
|
7.
|
Plan
of Distribution:
|
Except
as set forth below, the undersigned (including its donees or pledgees)
intends
to distribute the Registrable Securities listed above in Item 3 pursuant to
the Registration Statement only as follows (if at all). Such Registrable
Securities may be sold from time to time directly by the undersigned or
alternatively, through underwriters, broker-dealers or agents. If the
Registrable Securities are sold through underwriters or broker-dealers,
the
Selling Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions and their professional fees. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined
at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve block transactions) (i) on any national
securities exchange or quotation service on which the Registrable Securities
may
be listed or quoted at the time of sale, (ii) in the over-the-counter
market or (iii) in transactions otherwise than on such exchanges or
services or in the over-the-counter market. The Selling Securityholder
may
pledge or grant a security interest in some or all of the Registrable Securities
owned by it and if it defaults, in the performance of its secured obligations,
the pledges or secured parties may offer and sell the Registrable Securities
from time to time pursuant to the prospectus. The Selling Securityholder
also
may transfer and donate Registrable Securities in other circumstances in
which
case the transferees, donees, pledgees or other successors in interest
will be
the selling Securityholder for purposes of the prospectus.
State
any
exceptions here:
_______________________________________________________________________________________________
_______________________________________________________________________________________________
5
_______________________________________________________________________________________________
_______________________________________________________________________________________________
The
undersigned acknowledges that it understands its obligation to comply with
the
provisions of the Exchange Act and the rules thereunder relating to stock
manipulation, particularly Regulation M thereunder (or any successor rules
or regulations) and the provisions of the Securities Act relating to prospectus
delivery, in connection with any offering of Registrable Securities pursuant
to
the Registration Statement. The undersigned agrees that neither it nor any
person acting on its behalf will engage in any transaction in violation of
such
provisions.
The
Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless some persons
as set
forth therein.
Pursuant
to the Registration Rights Agreement, the Company has agreed under some
circumstances to indemnify the Selling Securityholder against some
liabilities.
All
notices to the beneficial owner hereunder and pursuant to the Registration
Rights Agreement shall be made in writing to the undersigned at the address
set
forth in Item 2 of this Notice and Questionnaire.
In
accordance with the undersigned's obligation under the Registration Rights
Agreement to provide such information as may be required by law for inclusion
in
the Registration Statement, the undersigned agrees to promptly notify the
Company of any inaccuracies or changes in the information provided in this
offering memorandum that may occur subsequent to the date hereof at any time
while the Registration Statement remains effective. All notices hereunder
and
pursuant to the Registration Rights Agreement shall be made in writing at
the
address set forth below.
In
the
event that the undersigned transfers all or any portion of the Registrable
Securities listed in Item 3 above after the date on which such information
is provided to the Company, the undersigned agrees to notify the transferee(s)
at the time of transfer of its rights and obligations under this Notice and
Questionnaire and the Registration Rights Agreement.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in, its answers to Items 1 through 7 above and the
inclusion of such information in the Registration Statement and the related
prospectus. The undersigned understands that such information will be relied
upon by the Company in connection with the preparation or amendment of the
Registration Statement and the related prospectus.
By
signing below, the undersigned agrees that if the Company notifies the
undersigned that the Registration Statement is not available, the undersigned
will suspend use of the prospectus until receipt of notice from the Company
that
the prospectus is again available.
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or
by its
duly authorized agent.
6
|
NAME
OF BENEFICIAL OWNER:
|
|
|
___________________________________
Dated
|
___________________________________
(please print)
|
|
By:
________________________________
Name:
Title:
|
PLEASE
RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE
TO THE COMPANY AT:
00
X.
Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
General Counsel
7
