Medical Properties Trust, Inc. and MPT Operating Partnership, L.P. Registration Rights Agreement
Exhibit 10.1
Medical Properties Trust, Inc.
and
MPT Operating Partnership, L.P.
November 6, 2006
This Registration Rights Agreement (the “Agreement”) is made and entered
into as of November 6, 2006, by and among MPT Operating Partnership, L.P., a Delaware limited
partnership (the “Issuer”), Medical Properties Trust, Inc., a Maryland corporation (the
“Guarantor”), and UBS Securities LLC and X.X. Xxxxxx Securities Inc., as representatives
(the “Representatives”) of the initial purchasers (collectively, the “Initial Purchasers”)
pursuant to that certain Purchase Agreement, dated November 1, 2006 (the “Purchase
Agreement”), among the Issuer, the Guarantor and the Initial Purchasers.
In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Guarantor
has agreed to provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the closing under the Purchase Agreement. The terms
“herein,” “hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement, shall in
each case refer to this Agreement as a whole and not to any particular section, paragraph, sentence
or other subdivision of this Agreement.
The Guarantor agrees with the Initial Purchasers (i) for their benefit as Initial Purchasers
and (ii) for the benefit of the beneficial owners (including the Initial Purchasers) from time to
time of the Notes and the Covered Securities (as defined herein) (each of the foregoing a
“Holder” and, together, the “Holders”), as follows:
1. Definitions. Capitalized terms used herein without definition shall have the
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:
(a) “additional interest” has the meaning set forth in Section 2(e) hereof.
(b) “Additional Interest Accrual Period” has the meaning set forth in Section
2(e) hereof.
(c) “Additional Interest Amount” has the meaning set forth in Section 2(e)
hereof.
(d) “Additional Interest Payment Date” means each May 15 and November 15 of
each year.
(e) “Affiliate” means, with respect to any specified person, an “affiliate,” as
defined in Rule 144, of such person.
(f) “Amendment Effectiveness Deadline Date” has the meaning set forth in
Section 2(d) hereof.
(g) “Automatic Shelf Registration Statement” has the meaning ascribed to it in
Rule 405.
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(h) “Business Day” means each day on which the New York Stock Exchange is open
for trading.
(i) “Claim” has the meaning set forth in Section 9(o) hereof.
(j) “Common Stock” means the shares of common stock, $0.001 par value per
share, of the Guarantor and any other shares of capital stock as may constitute “Common
Stock” for purposes of the Indenture, including the Underlying Common Stock.
(k) “Covered Security” has the meaning set forth in Section 1(rr) hereof.
(l) “Designated Event Repurchase Date” has the meaning ascribed to it in the
Indenture.
(m) “Effectiveness Deadline Date” has the meaning set forth in Section 2(a)
hereof.
(n) “Effectiveness Period” means a period that begins as of the date the
Initial Shelf Registration Statement becomes effective under the Securities Act and
terminates (subject to extension pursuant to Section 3(k) hereof) when there are no
Registrable Securities outstanding.
(o) “Event” has the meaning set forth in Section 2(e) hereof.
(p) “Event Date” has the meaning set forth in Section 2(e) hereof.
(q) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
(r) “Exchange Price” has the meaning ascribed to it in the Indenture.
(s) “Exchange Rate” has the meaning ascribed to it in the Indenture.
(t) “Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.
(u) “Form S-1” means Form S-1 under the Securities Act.
(v) “Form S-3” means Form S-3 under the Securities Act.
(w) “Holder” has the meaning set forth in the preamble hereto.
(x) “Holder Information” has the meaning set forth in Section 6(b) hereof.
(y) “Indemnified Party” has the meaning set forth in Section 6(c) hereof.
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(z) “Indemnifying Party” has the meaning set forth in Section 6(c) hereof.
(aa) “Indenture” means the Indenture, dated as of November 6, 2006, among the
Guarantor, the Issuer and the Trustee, pursuant to which the Notes are being issued.
(bb) “Initial Purchasers” has the meaning set forth in the preamble hereto.
(cc) “Initial Shelf Registration Statement” has the meaning set forth in
Section 2(a) hereof.
(dd) “Issue Date” means November 6, 2006.
(ee) “Managing Underwriters” has the meaning set forth in Section 8(a) hereof.
(ff) “Material Event” has the meaning set forth in Section 3(k) hereof.
(gg) “NASD Rules” has the meaning set forth in Section 3(t) hereof.
(hh) “Notes” means the 6.125% Exchangeable Senior Notes due 2011 of the Issuer
to be purchased pursuant to the Purchase Agreement.
(ii) “Notice and Questionnaire” means a written questionnaire containing
substantially the information called for by the Selling Securityholder Notice and
Questionnaire attached as Annex A to the offering memorandum, dated November 1, 2006,
relating to the offering of the Notes.
(jj) “Notice Holder” means, on a given date, any Holder that has delivered a
Notice and Questionnaire to the Guarantor on or prior to such date, provided not all of such
Holder’s Registrable Securities that have been registered for resale pursuant to a Notice
and Questionnaire have been sold in accordance with a Shelf Registration Statement.
(kk) “Proceeding” has the meaning set forth in Section 6(c) hereof.
(ll) “Prospectus” means each prospectus relating to any Shelf Registration
Statement, including all supplements and amendments to such prospectus, in each case in the
form furnished pursuant to this Agreement by the Guarantor to Holders or filed by the
Guarantor with the SEC pursuant to Rule 424 or as part of such Shelf Registration Statement,
as the case may be, and in each case including all materials, if any, incorporated by
reference or deemed to be incorporated by reference in such prospectus.
(mm) “Purchase Agreement” has the meaning set forth in the preamble hereof.
(nn) “Record Date” means, (i) May 1, with respect to an Additional Interest
Payment Date that occurs on May 15 and (ii) November 1, with respect to an Additional
Interest Payment Date that occurs on November 15.
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(oo) “Record Holder” means, with respect to an Additional Interest Payment Date
relating to a Registrable Security for which any Additional Interest Amount has accrued, a
Notice Holder that was the holder of record of such Registrable Security at the close of
business on the Record Date relating to such Additional Interest Payment Date.
(pp) “Redemption” means the redemption of the Notes pursuant to Section 3.01 of
the Indenture.
(qq) “Redemption Date” has the meaning ascribed to it in the Indenture.
(rr) “Registrable Securities” means the Underlying Common Stock initially
issuable in exchange for the Notes initially sold to the Initial Purchasers, and any
securities into or for which such Underlying Common Stock has been converted or exchanged,
and any security issued with respect thereto upon any stock dividend, split or similar event
(each of the foregoing, a “Covered Security”) until, in the case of any such
security, the earliest of:
(i) the date on which such security has been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
relating thereto;
(ii) the date on which such security may be resold without restriction pursuant
to Rule 144(k) or any successor provision thereto;
(iii) the date on which such security has been publicly sold pursuant to Rule
144 or any successor provision thereto; or
(iv)the date on which such security ceases to be outstanding.
(ss) “Registration Expenses” has the meaning set forth in Section 5 hereof.
(tt) “Registration Statement” means each registration statement, under the
Securities Act, of the Guarantor that covers any of the Registrable Securities pursuant to
this Agreement, including amendments and supplements to such registration statement and
including all post-effective amendments to, all exhibits of, and all materials incorporated
by reference or deemed to be incorporated by reference in, such registration statement,
amendment or supplement.
(uu) “Repurchase Upon Designated Event” means a repurchase of the Notes
pursuant to Section 3.05 of the Indenture.
(vv) “Rule 144” means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
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(ww) “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(xx) “Rule 405” means Rule 405 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(yy) “Rule 415” means Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(zz) “Rule 424” means Rule 424 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(aaa) “Rule 430B” means Rule 430B under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(bbb) “Rule 456” means Rule 456 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(ccc) “Rule 457” means Rule 457 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(ddd) “SEC” means the Securities and Exchange Commission.
(eee) “Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
(fff) “Shelf Registration Statement” means the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
(ggg) “Subsequent Shelf Registration Statement” has the meaning set forth in
Section 2(b) hereof.
(hhh) “Subsequent Shelf Registration Statement Effectiveness Deadline Date” has
the meaning set forth in Section 2(d) hereof.
(iii) “Suspension Notice” has the meaning set forth in Section 3(k) hereof.
(jjj) “Suspension Period” has the meaning set forth in Section 3(k) hereof.
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(kkk) “TIA” means the Trust Indenture Act of 1939, as amended.
(lll) “Trustee” means Wilmington Trust Company, the trustee under the
Indenture.
(mmm) “Underlying Common Stock” means the Common Stock issuable upon exchange
of the Notes or upon Redemption or Repurchase Upon Designated Event.
(nnn) “Well-Known Seasoned Issuer” has the meaning ascribed to it in Rule 405.
2. Shelf Registration.
(a) The Guarantor shall prepare and file, or cause to be prepared and filed, with the
SEC, as soon as practicable but in any event by the date (the “Filing Deadline
Date”) that is one hundred twenty (120) days after the Issue Date, a Registration
Statement (the “Initial Shelf Registration Statement”) for an offering to be made on
a delayed or continuous basis pursuant to Rule 415 registering the resale from time to time
by Holders thereof of all of the Registrable Securities (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and regulations of the
SEC, then registering the resale from time to time by Notice Holders of their Registrable
Securities). The Initial Shelf Registration Statement shall provide for the registration of
such Registrable Securities for resale by such Holders in accordance with any reasonable
method of distribution elected by the Holders. In no event shall the Initial Shelf
Registration Statement be filed with the SEC prior to completion of the offering of the
Notes contemplated by the Purchase Agreement. If the Initial Shelf Registration Statement
is not an Automatic Shelf Registration Statement, the Guarantor shall use its commercially
reasonable best efforts to cause the Initial Shelf Registration Statement to become
effective under the Securities Act as promptly as practicable but in any event by the date
(the “Effectiveness Deadline Date”) that is two hundred ten (210) days after the
Issue Date. The Guarantor shall use its commercially reasonable best efforts to keep the
Initial Shelf Registration Statement (and any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act from the date the Shelf Registration
Statement is declared effective until the earlier of (i) the twentieth (20th) trading day
immediately following the maturity date of the Notes and (ii) the date upon which there are
no Notes or Registrable Securities outstanding. At the time the Initial Shelf Registration
Statement becomes effective under the Securities Act, each Holder that became a Notice
Holder on or before the 15th day before the date of such effectiveness shall be named as a
selling securityholder in the Initial Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of Registrable Securities in accordance with applicable law.
(b) If, for any reason, at any time during the Effectiveness Period any Shelf
Registration Statement ceases to be effective under the Securities Act, or ceases to be
usable for the purposes contemplated hereunder, the Guarantor shall use its commercially
reasonable best efforts to promptly cause such Shelf Registration Statement to become
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effective or usable under the Securities Act (including obtaining the prompt withdrawal
of any order suspending the effectiveness of such Shelf Registration Statement), and in any
event shall, within thirty (30) days of such cessation of effectiveness or usability, (i)
amend such Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of any order suspending the effectiveness of such Shelf Registration Statement or
(ii) file an additional Registration Statement (a “Subsequent Shelf Registration
Statement”) for an offering to be made on a delayed or continuous basis pursuant to Rule
415 registering the resale from time to time by Holders thereof of all securities that are
Registrable Securities as of the time of such filing (or, if registration of Registrable
Securities not held by Notice Holders is not permitted by the rules and regulations of the
SEC, then registering the resale from time to time by Notice Holders of their securities
that are Registrable Securities as of the time of such filing). If a Subsequent Shelf
Registration Statement is filed and such Subsequent Shelf Registration Statement is not an
Automatic Shelf Registration Statement, the Guarantor shall use its commercially reasonable
best efforts to cause such Subsequent Shelf Registration Statement to become effective under
the Securities Act as promptly as practicable after such filing, but in no event later than
the Subsequent Shelf Registration Statement Effectiveness Deadline Date. The Guarantor
shall use its commercially reasonable best efforts to keep such Subsequent Shelf
Registration Statement (or another Subsequent Shelf Registration Statement) continuously
effective under the Securities Act from the date the Subsequent Shelf Registration Statement
is declared effective until the earlier of (i) the twentieth (20th) trading day immediately
following the maturity date of the Notes and (ii) the date upon which there are no Notes or
Registrable Securities outstanding. Each such Subsequent Shelf Registration Statement, if
any, shall provide for the registration of such Registrable Securities for resale by such
Holders in accordance with any reasonable method of distribution elected by the Holders.
(c) The Guarantor shall supplement and amend any Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the registration form used
by the Guarantor for such Shelf Registration Statement, if required by the Securities Act
or, if necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, as reasonably requested by the Representatives or the
Trustee on behalf of the Holders of the Registrable Securities covered by such Shelf
Registration Statement.
(d)
(i) Each Holder of Registrable Securities agrees that, if such Holder wishes to
sell Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(k). Each Holder of Registrable Securities wishing to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus agrees to deliver
a completed and executed Notice and Questionnaire to the Guarantor, together with
any other information the Guarantor may reasonably request, prior to any attempted
or actual distribution of Registrable Securities under a Shelf Registration
Statement. If a Holder becomes a Notice Holder after
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the 15th day before the date the Initial Shelf Registration Statement becomes
effective under the Securities Act, the Guarantor shall use its commercially
reasonable best efforts to, after the date such Holder became a Notice Holder, and
in any event, subject to clause (B) below, within the later of (x) twenty (20)
Business Days after such date or (y) twenty (20) Business Days after the expiration
of any Suspension Period that either (I) is in effect when such Holder became a
Notice Holder or (II) is put into effect within twenty (20) Business Days after the
date such Holder became a Notice Holder;
(A) file with the SEC a supplement to the related Prospectus (or, if
required by applicable law, a post-effective amendment to the Shelf
Registration Statement or a Subsequent Shelf Registration Statement), and
all other document(s), in each case as is required so that such Notice
Holder is named as a selling securityholder in a Shelf Registration
Statement and the related Prospectus in such a manner as to permit such
Notice Holder to deliver a Prospectus to purchasers of the Registrable
Securities in accordance with the Securities Act; provided,
however, that, if a post-effective amendment or a Subsequent Shelf
Registration Statement is required by the rules and regulations of the SEC
in order to permit resales by such Notice Holder, the Guarantor shall not be
required to file more than one (1) post-effective amendment or Subsequent
Shelf Registration Statement for such purpose in any ninety (90) day period;
(B) if, pursuant to Section 2(d)(i)(A), the Guarantor shall have filed
a post-effective amendment to the Shelf Registration Statement or filed a
Subsequent Shelf Registration Statement, the Guarantor shall use its
commercially reasonable best efforts to cause such post-effective amendment
or Subsequent Shelf Registration Statement, as the case may be, to become
effective under the Securities Act as promptly as practicable, but in any
event by the date (the “Amendment Effectiveness Deadline Date,” in
the case of a post-effective amendment, and the “Subsequent Shelf
Registration Statement Effectiveness Deadline Date,” in the case of a
Subsequent Shelf Registration Statement) that is ninety (90) days after the
date such post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, is required by this Section 2(d) to be filed
with the SEC;
(C) the Guarantor shall provide such Notice Holder a reasonable number
of copies of any documents filed pursuant to clause (A) above, if requested
by such Notice Holder;
(D) the Guarantor shall notify such Notice Holder as promptly as
practicable after the effectiveness under the Securities Act of any
post-effective amendment or Subsequent Shelf Registration Statement filed
pursuant to clause (A) above;
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(E) if such Holder became a Notice Holder during a Suspension Period,
or a Suspension Period is put into effect within twenty (20) Business Days
after the date such Holder became a Notice Holder, the Guarantor shall so
inform such Notice Holder and shall take the actions set forth in clauses
(A), (B), (C) and (D) above within fifteen (15) Business Days after
expiration of such Suspension Period in accordance with Section 3(k);
(F) if (A) the Notes are called for redemption and the then prevailing
market price of the Common Stock is above the Exchange Price or (B) the
Notes are exchanged as provided for in Sections 13.01(i), 13.01(ii) or
13.01(iv) of the Indenture, then the Guarantor shall take the actions set
forth in clauses (A), (B), (C) and (D) above within ten (10) Business Days
of the redemption date or the end of the exchange period, as applicable, or
if such Notice and Questionnaire is delivered during a Suspension Period,
upon expiration of the Suspension Period in accordance with Section 3(k);
and
(G) if, under applicable law, the Guarantor has more than one option as
to the type or manner of making any such filing, the Guarantor shall make
the required filing or filings in the manner or of a type that is reasonably
expected to result in the earliest availability of a Prospectus for
effecting resales of Registrable Securities under the Securities Act.
(ii) Notwithstanding anything contained herein to the contrary, the Guarantor
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus;
provided, however, that any Holder that becomes a Notice Holder
(regardless of when such Holder became a Notice Holder) shall be named as a selling
securityholder in a Shelf Registration Statement or related Prospectus in accordance
with the requirements of this Section 2(d) or Section 2(a), as applicable.
(e) The parties hereto agree that the Holders of Registrable Securities will suffer
damages, and that it would not be feasible to ascertain the extent of such damages with
precision, if:
(i) the Initial Shelf Registration Statement (which shall be an Automatic Shelf
Registration Statement if the Guarantor is a Well-Known Seasoned Issuer) has not
been filed with the SEC on or prior to the Filing Deadline Date;
(ii) the Guarantor is not a Well Known Seasoned Issuer, the Initial Shelf
Registration Statement has not been declared or become effective under the
Securities Act on or prior to the Effectiveness Deadline Date;
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(iii) the Initial Shelf Registration Statement or any Subsequent Registration
Statement is filed with the SEC and is declared or becomes effective under the
Securities Act but shall thereafter cease to be effective (without being succeeded
immediately by a new Registration Statement that is filed and immediately becomes
effective under the Securities Act) or usable under the Securities Act for the offer
and sale of Registrable Securities in the manner contemplated by this Agreement and
(I) other than in connection with (A) a Suspension Period or (B) as a result of a
requirement to file a post-effective amendment or supplement to the Prospectus to
make changes to the information regarding selling securityholders provided for
therein, the Guarantor does not cure the lapse of effectiveness or usability within
ten (10) Business Days or (II) the Suspension Period, when aggregated with other
Suspension Periods, shall exceed the number of days permitted in Section 3(k); or
(iv) any Registration Statement or amendment thereto, at the time it becomes
effective under the Securities Act, or any Prospectus relating thereto, at the time
it is filed with the SEC or, if later, at the time the Registration Statement to
which such Prospectus relates becomes effective under the Securities Act, shall fail
to name each Holder as a selling securityholder in such a manner as to permit such
Holder to sell its Registrable Securities pursuant to such Registration Statement
and Prospectus in accordance with the Securities Act, which Holder was required,
pursuant to the terms of this Agreement, to be so named (it being understood that,
without limitation, naming such Holder in a manner that permits such Holder to sell
only a portion of such Holder’s Registrable Securities referenced in such Holder’s
Notice and Questionnaire shall be deemed to be an “Event” (as defined below) for
purposes of this clause (iv)).
Each of the events of a type described in any of the foregoing clauses (i) through (iv) are
individually referred to herein as an “Event,” and
(W) the Filing Deadline Date, in the case of clause (i) above,
(X) the Effectiveness Deadline Date, in the case of clause (ii) above,
(Y) the date on which the duration of the ineffectiveness or unusability of the
Shelf Registration Statement exceeds the number of days permitted by clause (iii)
above, in the case of clause (iii) above, and
(Z) the date the applicable Registration Statement or amendment thereto shall
become effective under the Securities Act, or the date the applicable Prospectus is
filed with the SEC or, if later, the time the Registration Statement to which such
Prospectus relates becomes effective under the Securities Act, as the case may be,
in the case of clause (iv) above,
are each herein referred to as an “Event Date.” Events shall be deemed to continue
until the following dates with respect to the respective types of Events:
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(A) the date the Initial Shelf Registration Statement is filed with the SEC, in
the case of an Event of the type described in clause (i) above;
(B) the date the Initial Shelf Registration Statement is declared or becomes
effective under the Securities Act, in the case of an Event of the type described in
clause (ii) above;
(C) the date the Initial Shelf Registration Statement or the Subsequent Shelf
Registration Statement, as the case may be, becomes effective and usable again, or
the date another Subsequent Shelf Registration Statement is filed with the SEC
pursuant to Section 2(b) and becomes effective, in the case of an Event of the type
described in clause (iii) above; or
(D) the date a supplement to the Prospectus is filed with the SEC, or the date
a post-effective amendment to the Registration Statement becomes effective under the
Securities Act, or the date a Subsequent Shelf Registration Statement becomes
effective under the Securities Act, which supplement, post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, names as selling
securityholders, in such a manner as to permit them to sell their Registrable
Securities pursuant to the Registration Statement and Prospectus supplement in
accordance with the Securities Act, all Holders required as herein provided to be so
named, in the case of an Event of the type described in clause (iv) above.
Accordingly, commencing on (and including) any Event Date and ending on (but excluding) the
next date on which there are no Events that have occurred and are continuing (an
“Additional Interest Accrual Period”), the Guarantor agrees to pay, as additional
interest (“additional interest”) and not as a penalty, an amount (the
“Additional Interest Amount”) at the rate described below, payable periodically on
each Additional Interest Payment Date to Record Holders, to the extent of, for each such
Additional Interest Payment Date, the unpaid Additional Interest Amount that has accrued to
(but excluding) such Additional Interest Payment Date (or, if the Additional Interest
Accrual Period shall have ended prior to such Additional Interest Payment Date, to, but
excluding, the day immediately after, the last day of such Additional Interest Accrual
Period); provided, however, that any unpaid Additional Interest Amount that
has accrued with respect to any Note, or portion thereof, called for Redemption on a
Redemption Date, or purchased by the Company pursuant to a Repurchase Upon Designated Event
on a Designated Event Repurchase Date, as the case may be, that is after the close of
business on the Record Date relating to such Additional Interest Payment Date and before
such Additional Interest Payment Date, shall, in each case, be instead paid, on such
Redemption Date or Designated Event Repurchase Date, as the case may be, to the Holder who
submitted such Note or portion thereof for Redemption or Repurchase Upon Designated Event,
as the case may be.
The Additional Interest Amount shall accrue at a rate per annum equal to one quarter of
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one percent (0.25%) for the ninety (90) day period beginning on, and including, the Event
Date and thereafter at a rate per annum equal to one half of one percent (0.50%) of the
aggregate principal amount of the Notes of which such Record Holders were holders of record
at the close of business on the applicable Record Date; provided, however,
that:
(I) unless there shall be a default in the payment of any Additional Interest
Amount, no Additional Interest Amounts shall accrue as to any Note from and after
the earlier of (x) the date such security is no longer a Registrable Security, (y)
the date, and to the extent, such Note is exchanged for cash and, if
applicable, shares of Common Stock in accordance with the Indenture and (z) the expiration of
the Effectiveness Period;
(II) only those Holders (or their subsequent transferees) failing to be named
as selling securityholders in the manner prescribed in Section 2(e)(iv) above shall
be entitled to receive any Additional Interest Amounts that have accrued solely with
respect to an Event of the type described in Section 2(e)(iv) above (it being
understood that this clause (II) shall not impair any right of any Holder to receive
Additional Interest Amounts that have accrued with respect to an Event other than an
Event of the type described in Section 2(e)(iv) above); and
(III) if a Note ceases to be outstanding during an Additional Interest Accrual
Period for which an Additional Interest Amount would be payable with respect to such
Note, then the Additional Interest Amount payable hereunder with respect to such
Note shall be prorated on the basis of the number of full days such Note is
outstanding during such Additional Interest Accrual Period.
No Additional Interest Amounts shall be payable in respect of any Common Stock delivered as
payment of any portion of a make-whole payment. Except as provided in the final paragraph
of this Section 2(e), (i) the rate of accrual of the Additional Interest Amount with respect
to any period shall not exceed the rate provided for in this Section 2(e) notwithstanding
the occurrence of multiple concurrent Events and (ii) following the cure of all Events
requiring the payment by the Guarantor of Additional Interest Amounts to the Holders
pursuant to this Section, the accrual of Additional Interest Amounts shall cease (without in
any way limiting the effect of any subsequent Event requiring the payment of Additional
Interest Amounts by the Guarantor). All installments of additional interest on any Global
Note (as defined in the Indenture) shall be paid by wire transfer of immediately available
funds to the account of the Depositary (as defined in the Indenture) or its nominee. Payment
of additional interest on the Notes not represented by a Global Note will be made at the
Corporate Trust Office maintained for that purpose in the Borough of Manhattan, The City of
New York, New York, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided, however, that
at the option of the Issuer, payments of additional interest on the Notes may be made (i) by
check mailed to the address of the Person (as defined in the Indenture) entitled thereto as
such address shall appear in the Note Register (as defined in the Indenture) or (ii) by wire
transfer to an account maintained by the Person entitled thereto located within the United
States.
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All of the Guarantor’s obligations set forth in this Section 2(e) that are outstanding with
respect to any Registrable Security at the time such Registrable Security ceases to be a
Registrable Security shall survive until such time as all such obligations with respect to
such security have been satisfied in full (notwithstanding termination of this Agreement
pursuant to Section 9(n)).
The parties hereto agree that the additional interest provided for in this Section 2(e)
constitutes a reasonable estimate of the damages that may be incurred by Holders by reason
of an Event, including, without limitation, the failure of a Shelf Registration Statement to
be filed, become effective under the Securities Act, amended or replaced to include the
names of all Notice Holders or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
If any Additional Interest Amounts are not paid when due, then, to the extent permitted by
law, such overdue Additional Interest Amounts, if any, shall bear interest, compounded
semi-annually, until paid at the rate of interest payable with respect to overdue amounts on
the Notes pursuant to the Indenture.
Notwithstanding any provision in this Agreement, in no event shall an Additional Interest
Amount accrue to holders of Common Stock issued upon exchange of Notes. In lieu thereof, if
during an Additional Interest Accrual Period a Holder shall exchange their Notes for Common
Stock, the Guarantor shall increase the Exchange Rate by 3% for each $1,000 principal amount
of Notes exchanged.
(f) The Trustee shall be entitled, on behalf of Holders, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any Additional Interest
Amount.
3. Registration Procedures. In connection with the registration obligations of the
Guarantor under Section 2 hereof, the Guarantor shall:
(a) Prepare and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements in the manner provided in this Agreement and use its commercially reasonable best
efforts to cause each such Shelf Registration Statement to become effective under the
Securities Act and remain effective under the Securities Act as provided herein;
provided, that, before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, the Guarantor shall furnish to the
Representatives and counsel for the Holders and for the Representatives (or, if applicable,
a single separate counsel for the Holders) copies of all such documents proposed to be filed
and reflect in each such document when so filed with the SEC such comments as the
Representatives or such counsel reasonably shall propose within three (3) Business Days of
the delivery of such copies to the Representatives and such counsel. Each Registration
Statement that is or is required by this Agreement to be filed with the SEC shall be filed
on Form S-3 if the Guarantor is then eligible to use Form S-3 for the purposes contemplated
by this Agreement, or, if the Guarantor is not then so eligible to
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use Form S-3, shall be on Form S-11 or another appropriate form that is then available
to the Guarantor for the purposes contemplated by this Agreement. Each such Registration
Statement that is filed on Form S-3 shall constitute an Automatic Shelf Registration
Statement if the Guarantor is then eligible to file an Automatic Shelf Registration
Statement on Form S-3 for the purposes contemplated by this Agreement. If, at the time any
Registration Statement is filed with the SEC, the Guarantor is eligible, pursuant to Rule
430B(b), to omit, from the prospectus that is filed as part of such Registration Statement,
the identities of selling securityholders and amounts of securities to be registered on
their behalf, then the Guarantor shall prepare and file such Registration Statement in a
manner as to permit such omission and to allow for the subsequent filing of such information
in a prospectus pursuant to Rule 424(b) in the manner contemplated by Rule 430B(d).
(b) Prepare and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement
or Subsequent Shelf Registration Statement continuously effective until the expiration of
the Effectiveness Period; cause the related Prospectus to be supplemented by any required
Prospectus supplement and, as so supplemented, to be filed with the SEC pursuant to Rule
424; and comply with the provisions of the Securities Act applicable to it with respect to
the disposition of all securities covered by each Shelf Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended or such Prospectus as
so supplemented.
(c) If the third anniversary of the initial effective date of any Registration
Statement (within the meaning of Rule 415(a)(5) under the Securities Act) shall occur at any
time during the Effectiveness Period, to the extent required pursuant to Rule 415(a)(5)
under the Securities Act in order to permit the Registrable Securities to continue to be
offered, file with the SEC, prior to such third anniversary, a new Registration Statement
covering the Registrable Securities, in the manner contemplated by, and in compliance with,
Rule 415(a)(6), and use its commercially reasonable best efforts to cause such new
Registration Statement to become effective under the Act as soon as practicable, but in any
event within 180 days after such third anniversary. Each such new Registration Statement,
if any, shall be deemed, for purposes of this Agreement, to be a Subsequent Shelf
Registration Statement.
(d) If, at any time during the Effectiveness Period, any Registration Statement shall
cease to comply with the requirements of the Securities Act with respect to eligibility for
the use of the form on which such Registration Statement was filed with the SEC (or if such
Registration Statement constituted an Automatic Shelf Registration Statement at the time it
was filed with the SEC and shall thereafter cease to constitute an Automatic Shelf
Registration Statement, or if the Guarantor shall have received, from the SEC, a notice,
pursuant to Rule 401(g)(2) under the Securities Act, of objection to the use of the form on
which such Registration Statement was filed with the SEC), (i) promptly give notice to the
Notice Holders and counsel for the Holders and for the Representatives (or, if applicable, a
single separate counsel for the Holders) and to the Representatives
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and (ii) promptly file with the SEC a new Registration Statement under the Securities
Act, or a post-effective amendment to such Registration Statement, to effect compliance with
the Securities Act. The Guarantor shall use its commercially reasonable best efforts to
cause such new Registration Statement or post-effective amendment to become effective under
the Securities Act as soon as practicable, but subject to compliance with Section 3(a)
hereof, and shall promptly give notice of such effectiveness to the Notice Holders and
counsel for the Holders and for the Representatives (or, if applicable, a single separate
counsel for the Holders) and to the Representatives. Each such new Registration Statement,
if any, shall be deemed, for purposes of this Agreement, to be a Subsequent Shelf
Registration Statement.
(e) As promptly as practicable during the Effectiveness Period, give notice to the
Notice Holders, the Representatives and counsel for the Holders and for the Representatives
(or, if applicable, a single separate counsel for the Holders):
(i) when any Prospectus, Prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration Statement has been filed with the
SEC and, with respect to a Shelf Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act.
(ii) of any request, following the effectiveness of a Shelf Registration
Statement under the Securities Act, by the SEC or any other governmental authority
for amendments or supplements to such Shelf Registration Statement or the related
Prospectus or for additional information,
(iii) of the issuance by the SEC or any other governmental authority of any
stop order suspending the effectiveness of any Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Guarantor or its legal counsel of any notification
with respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose,
(v) after the effective date of any Shelf Registration Statement filed with the
SEC pursuant to this Agreement, of the occurrence of (but not the nature of or
details concerning) a Material Event, and
(vi) of the determination by the Guarantor that a post-effective amendment to a
Shelf Registration Statement or a Subsequent Shelf Registration Statement will be
filed with the SEC, which notice may, at the discretion of the Guarantor (or as
required pursuant to Section 3(k)), state that it constitutes a Suspension Notice,
in which event the provisions of Section 3(k) shall apply.
(f) Use its commercially reasonable best efforts to (i) prevent the issuance of,
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and, if issued, to obtain the withdrawal of, any order suspending the effectiveness of
a Shelf Registration Statement and (ii) obtain the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction in which they have been qualified for sale, in either case at the
earliest practicable moment, and provide prompt notice to each Notice Holder and the
Representatives, and counsel for the Holders and for the Representatives (or, if applicable,
a single separate counsel for the Holders), of the withdrawal or lifting of any such order
or suspension.
(g) If requested in writing by the Representatives or any Notice Holder, as promptly as
practicable incorporate in a Prospectus supplement or a post-effective amendment to a Shelf
Registration Statement such information as the Initial Purchasers, such Notice Holder or
counsel for the Holders and for the Initial Purchasers (or, if applicable, a single separate
counsel for the Holders) shall determine to be required to be included therein by applicable
law and make any required filings of such Prospectus supplement or such post-effective
amendment; provided, however, that the Guarantor shall not be required to
take any actions under this Section 3(g) that, in the written opinion of counsel for the
Guarantor, are not required to be included therein by applicable law.
(h) As promptly as practicable, furnish to each Notice Holder (but only upon such
Notice Holder’s request), counsel for the Holders and for the Representatives (or, if
applicable, a single separate counsel for the Holders) and the Representatives, without
charge, at least one (1) conformed copy of each Shelf Registration Statement and each
amendment thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits (unless
requested in writing to the Guarantor by such Notice Holder, such counsel or the
Representatives).
(i) During the Effectiveness Period, deliver to each Notice Holder, counsel for the
Holders and for the Representatives (or, if applicable, a single separate counsel for the
Holders) and the Representatives, in connection with any sale of Registrable Securities
pursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus
or Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such Notice Holder or the
Representatives may reasonably request; and the Guarantor hereby consents (except during
such periods that a Suspension Notice is outstanding and has not been revoked) to the use of
such Prospectus and each amendment or supplement thereto by each Notice Holder, in
connection with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto in the manner set forth therein.
(j) Prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its commercially reasonable best efforts to register or qualify
or cooperate with the Notice Holders in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
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Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably requests in writing
(which request may be included in the Notice and Questionnaire); use its commercially
reasonable best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period in connection with such Notice Holder’s
offer and sale of Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such Registrable Securities in
the manner set forth in the relevant Shelf Registration Statement and the related
Prospectus; provided, however, that the Guarantor will not be required to
(i) qualify generally to do business in any jurisdiction where it is not then so qualified;
(ii) take any action that would subject it to general service of process in suits, other
than those arising out of the offering or sale of Registrable Securities or arising in
connection with this Agreement, in any jurisdiction where it is not now so subject; or (iii)
take any action that would subject it to taxation in any jurisdiction where it is not then
so subject.
(k) Upon the occurrence or existence of any pending corporate development, public
filings with the SEC or any other material event (a “Material Event”) that, in the
reasonable discretion of the Guarantor, makes it appropriate to suspend the availability of
any Shelf Registration Statement and the related Prospectus:
(i) subject to the next sentence, as promptly as practicable, prepare and file,
if necessary pursuant to applicable law, a post-effective amendment to such Shelf
Registration Statement or a supplement to such Prospectus or any document
incorporated therein by reference or file any other required document that would be
incorporated by reference into such Shelf Registration Statement and Prospectus so
that such Shelf Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that such Prospectus
does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter delivered to
the purchasers of the Registrable Securities being sold thereunder, and, in the case
of a post-effective amendment to a Shelf Registration Statement, subject to the next
sentence, use its commercially reasonable best efforts to cause it to become
effective under the Securities Act as promptly as practicable, and
(ii) give notice (without notice of the nature or details of such events) to
the Notice Holders and counsel for the Holders and for the Representatives (or, if
applicable, a single separate counsel for the Holders) and to the Representatives
that the availability of the Shelf Registration Statement is suspended (a
“Suspension Notice”) (and, upon receipt of any Suspension Notice, each
Notice Holder agrees (x) not to sell any Registrable Securities pursuant to such
Shelf Registration Statement until such Notice Holder’s receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above or until
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such Notice Holder is advised in writing by the Guarantor that the Prospectus
may be used and (y) to hold such Suspension Notice in confidence).
The Guarantor will use its commercially reasonable best efforts to ensure that the use of
the Prospectus may be resumed as soon as, in the reasonable discretion of the Guarantor,
such suspension is no longer appropriate. Except in the case of a suspension of the
availability of the Shelf Registration Statement and the related Prospectus solely as the
result of the filing of a post-effective amendment or supplement to the Prospectus to add
additional selling securityholders therein, the period during which the availability of the
Shelf Registration Statement and any Prospectus may be suspended (the “Suspension
Period”) without the Guarantor incurring any obligation to pay additional interest
pursuant to Section 2(e) shall not exceed forty-five (45) days in the aggregate in any
ninety (90) day period or ninety (90) days in the aggregate in any three hundred and sixty
(360) day period, provided, that, if the event triggering the Suspension Period relates to a
proposed or pending material business transaction, the disclosure of which the board of
directors of the Guarantor determines in good faith would be reasonably likely to impede the
ability to consummate the transaction or would otherwise be seriously detrimental to the
Guarantor and its subsidiaries taken a whole, the Guarantor may extend the Suspension Period
from forty-five (45) days to sixty (60) days in any ninety (90) day period or from ninety
(90) days to one hundred and twenty (120) days in any three hundred and sixty (360) day
period. The Effectiveness Period shall be extended by the number of days from and including
the date of the giving of the Suspension Notice to and including the date on which the
Notice Holder received copies of the supplemented or amended Prospectus provided in clause
(i) above, or the date on which it is advised in writing by the Guarantor that the
Prospectus may be used and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such Prospectus.
(l) Make reasonably available for inspection during normal business hours by
representatives for the Notice Holders and any underwriters participating in any disposition
pursuant to any Shelf Registration Statement and any broker-dealers, attorneys and
accountants retained by such Notice Holders or any such underwriters, all relevant financial
and other records and pertinent corporate documents and properties of the Guarantor and its
subsidiaries, and cause the appropriate officers, directors and employees of the Guarantor
and its subsidiaries to make available for inspection during normal business hours all
relevant information reasonably requested by such representatives for the Notice Holders, or
any such underwriters, broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence” examinations;
provided, however, that such persons shall, at the Guarantor’s request,
first agree in writing with the Guarantor that such person will not engage in any
transaction involving securities of the Guarantor in violation of applicable law (including,
without limitation, federal securities laws prohibiting trading on the basis of material
non-public information) and that any information that is reasonably and in good faith
designated by the Guarantor 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 (i) disclosure of such
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information is required by court or administrative order or is necessary to respond to
inquiries of governmental or 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) or necessary to defend or prosecute a claim
brought against or by any such persons (e.g., to establish a “due diligence” defense), (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 or (iv) such information becomes
available to any such person from a source other than the Guarantor and such source is not
bound by a confidentiality agreement or is not otherwise under a duty of trust to the
Guarantor; provided further, that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice
Holders and the other parties entitled thereto by the counsel, referred to in Section 5, for
the Holders in connection with Shelf Registration Statements.
(m) Comply in all material respects with all applicable rules and regulations of the
SEC; and make generally available to its securityholders earnings statements (which need not
be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act), which statements
shall cover a period of twelve (12) months commencing on the first day of the first fiscal
quarter of the Guarantor commencing after the effective date of each Shelf Registration
Statement (within the meaning of Rule 158(c) under the Securities Act), and which statements
shall be so made generally available to the Guarantor’s securityholders as follows: (i) with
respect to an earnings statement which will be contained in one report on Form 10-K (or any
other form as may then be available for such purpose), such earnings statement shall be made
so generally available no later than the due date by which the Guarantor is required,
pursuant to the Exchange Act (subject to any applicable extensions under Rule 12b-25
thereunder), to file such report with the SEC; and (ii) with respect to an earnings
statement which will be contained in any combination of reports on Form 10-K or Form 10-Q
(or any other form(s) as may then be available for such purpose), such earnings statement
shall be made so generally available no later than the due date by which the Guarantor is
required, pursuant to the Exchange Act (subject to any applicable extensions under Rule
12b-25 thereunder), to file the last of such reports which together constitute such earnings
statement.
(n) Cooperate with each Notice Holder to facilitate the timely preparation and delivery
of certificates representing Registrable Securities sold pursuant to a Shelf Registration
Statement, which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least three (3)
Business Days prior to any sale of such Registrable Securities.
(o) Provide a CUSIP number for all Registrable Securities covered by a Shelf
Registration Statement not later than the effective date of the Initial Shelf Registration
Statement and provide the Trustee and the transfer agent for the Common Stock with
certificates for the Registrable Securities that are in a form eligible for deposit with The
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Depository Trust Guarantor.
(p) Cooperate and assist in any filings required to be made with the National
Association of Securities Dealers, Inc.
(q) Upon the filing of the Initial Shelf Registration Statement, and upon the
effectiveness under the Securities Act of the Initial Shelf Registration Statement, announce
the same, in each case by release through a reputable national newswire service.
(r) Take all actions and enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) as are necessary, or reasonably requested by
the Holders of a majority of the Registrable Securities being sold, in order to expedite or
facilitate disposition of such Registrable Securities; and in such connection, if an
underwriting agreement or similar agreement is entered into and whether or not the
registration is an underwritten registration:
(i) the Guarantor shall make such representations and warranties to the Holders
of such Registrable Securities and the underwriters, if any, in form, substance and
scope as would be customarily made by the Guarantor to underwriters in similar
offerings of securities;
(ii) the Guarantor shall obtain opinions of counsel of the Guarantor and
updates thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any, and to the counsel to
the Holders of the Registrable Securities being sold) addressed to each selling
Holder and the underwriters, if any, covering the matters that would be customarily
covered in opinions requested in sales of securities or underwritten offerings;
(iii) the Guarantor shall obtain “comfort letters” and updates thereof from the
Guarantor’s independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the Guarantor or of
any business acquired by the Guarantor for which financial statements are, or are
required to be, included in any Shelf Registration Statement) addressed to the
underwriters, if any, and 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), such letters to be in customary form and
covering matters of the type that would customarily be covered in “comfort letters”
to underwriters in connection with similar underwritten offerings;
(iv) the Guarantor shall, if an underwriting agreement is entered into, cause
any such underwriting agreement to contain customary indemnification provisions and
procedures; and
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(v) the Guarantor shall deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar offerings to the
holders of a majority of the Registrable Securities being sold and to the Managing
Underwriters, if any;
the above to be done in connection with any underwriting or similar agreement as and to the
extent required thereunder.
(s) Cause the Underlying Common Stock to be listed on the New York Stock Exchange.
(t) In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Registrable Securities or participate as a member of an underwriting
syndicate or selling group or “participate in a public offering” (within the meaning of the
Conduct Rules (the “NASD Rules”) of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise, the
Guarantor will assist such broker-dealer in complying with the requirements of such NASD
Rules, including, without limitation, by: (i) if such NASD Rules, including NASD Rule 2720,
shall so require, engaging a “qualified independent underwriter” (as defined in NASD Rule
2720) to participate in the preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in respect thereof and,
if any portion of the offering contemplated by such Shelf Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
or price, as the case may be, of such Registrable Securities; (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof; and (iii) 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.
4. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus
relating thereto, unless such Holder has furnished the Guarantor with a Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder
agrees promptly to furnish to the Guarantor all information required to be disclosed in order to
make the information previously furnished to the Guarantor by such Notice Holder not misleading and
any other information regarding such Notice Holder and the distribution of such Registrable
Securities as the Guarantor may from time to time reasonably request. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such Holder that the
Holder Information of such Holder furnished in writing by or on behalf of such Holder to the
Guarantor does not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements in such Holder Information, in the light of the
circumstances under which they were made, not misleading.
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5. Registration Expenses. The Guarantor shall bear all fees and expenses incurred in
connection with the performance by the Guarantor of its obligations under Section 2 and Section 3
of this Agreement whether or not any of the Shelf Registration Statements are filed or declared
effective under the Securities Act. Such fees and expenses (“Registration Expenses”) shall
include, without limitation, (i) all registration and filing fees and expenses (including, without
limitation, fees and expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal securities laws and
state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements
of counsel for the Holders in connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as the Notice Holders of a majority of the Registrable
Securities being sold pursuant to a Shelf Registration Statement may designate), (ii) all printing
expenses (including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and printing
Prospectuses), (iii) all duplication and mailing expenses relating to copies of any Shelf
Registration Statement or Prospectus delivered to any Holders hereunder, (iv) all fees and
disbursements of counsel for the Guarantor, (v) all fees and disbursements of the Trustee and its
counsel and of the registrar and transfer agent for the Common Stock and (vi) Securities Act
liability insurance obtained by the Guarantor in its sole discretion. In addition, the Guarantor
shall pay the internal expenses of the Guarantor (including, without limitation, all salaries and
expenses of officers and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the fees and expenses incurred in connection with the listing by
the Guarantor of the Registrable Securities on any securities exchange or quotation system on which
similar securities of the Guarantor are then listed and the fees and expenses of any person,
including, without limitation, special experts, retained by the Guarantor. If the Guarantor shall,
pursuant to Rule 456(b), defer payment of any registration fees due under the Securities Act with
respect to any Registration Statement, the Guarantor agrees that it shall pay the fees applicable
to such Registration Statement within the time required by Rule 456(b)(1)(i) (without reliance on
the proviso to Rule 456(b)(1)(i)) and in compliance with Rule 456(b) and Rule 457(r). In addition
and notwithstanding the foregoing, the Guarantor shall pay the reasonable fees and disbursements of
only one counsel for the Holders in connection with the Shelf Registration Statement.
6. Indemnification, Contribution.
(a) The Guarantor and the Issuer agree to indemnify, defend and hold harmless each
Initial Purchaser, each Holder, each person (a “Controlling Person”), if any, who
controls any Initial Purchaser or Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and the respective officers, directors, partners,
employees, representatives and agents of any Initial Purchaser, the Holders or any
Controlling Person (each, an “Indemnified Party”), from and against any loss,
damage, expense, liability, claim or any actions in respect thereof (including the
reasonable cost of investigation) which such Indemnified Party may incur or become subject
to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage,
expense, liability, claim or action arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in any Shelf Registration Statement or
Prospectus, including any document incorporated by reference
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therein, or in any amendment or supplement thereto or in any preliminary prospectus, or
arises out of or is based upon any omission or alleged omission to state a material fact
required to be stated in any Shelf Registration Statement or in any amendment or supplement
thereto or necessary to make the statements therein not misleading, or arises out of or is
based upon any omission or alleged omission to state a material fact necessary in order to
make the statements made in any Prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, in the light of the circumstances under which such statements
were made, not misleading, and the Guarantor and the Issuer shall reimburse, as incurred,
the Indemnified Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, damage, expense, liability, claim
or action in respect thereof; provided, however, that the Guarantor and the
Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in
any such case insofar as any such loss, damage, expense, liability, claim or action arises
out of or is based upon (i) any untrue statement or omission or alleged untrue statement or
omission of a material fact contained in, or omitted from, and in conformity with
information furnished in writing by or on behalf of an Initial Purchaser or a Holder to the
Guarantor expressly for use in, any Shelf Registration Statement or any Prospectus or (ii) a
disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by an
Indemnified Party during a Suspension Period, provided such Indemnified Party received,
prior to such disposition, a Suspension Notice with respect to such Suspension Period;
provided further, however, that this indemnity agreement will be in
addition to any liability which the Guarantor and the Issuer may otherwise have to such
Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold
harmless the Guarantor and the Issuer, each of its directors, officers, employees,
representatives, agents and any person who controls the Guarantor and the Issuer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
“Guarantor Indemnified Party”) from and against any loss, damage, expense,
liability, claim or any actions in respect thereof (including the reasonable cost of
investigation) which such Guarantor Indemnified Party may incur or become subject to under
the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
(the “Holder Information”) furnished in writing by or on behalf of such Holder to
the Guarantor expressly for use in, any Shelf Registration Statement or Prospectus, or
arises out of or is based upon any omission or alleged omission to state a material fact in
connection with such Holder Information, which material fact was not contained in such
Holder Information, and which material fact was either required to be stated in any Shelf
Registration Statement or Prospectus or necessary to make such Holder Information not
misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or with
respect to which such Holder is named as a selling securityholder, of Registrable Securities
during a Suspension Period, provided that the Guarantor shall have theretofore provided such
Holder a Suspension Notice in accordance with Section 3(k), or (C) a public sale of
Registrable Securities by such Holder without delivery, if required by the Securities Act,
of the most recent applicable Prospectus provided to such Holder by the
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Guarantor pursuant to Section 3(i) or Section 2(d)(i)(C), provided the Guarantor shall
have theretofore provided such Holder with copies of such Prospectus in a timely manner so
as to permit such delivery; and, subject to the limitation set forth in the immediately
preceding clause, each Holder shall reimburse, as incurred, the Guarantor and the Issuer for
any legal or other expenses reasonably incurred by the Guarantor and the Issuer or any such
controlling person in connection with investigating or defending any loss, damage, expense,
liability, claim or action in respect thereof. This indemnity agreement will be in addition
to any liability which such Holder may otherwise have to the Guarantor and the Issuer or any
of its controlling persons. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the
Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against
any person in respect of which indemnity may be sought pursuant to either Section 6(a) or
Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person
against whom such indemnity may be sought (the “Indemnifying Party”) in writing of
the institution of such Proceeding and the Indemnifying Party shall assume the defense of
such Proceeding; provided, however, that the omission to so notify such
Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may
have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to
employ its own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Party unless the employment of such counsel shall have
been authorized in writing by such Indemnifying Party in connection with the defense of such
Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the
defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such
Indemnified Party shall have reasonably concluded upon the written advice of counsel that
there may be one or more defenses available to it that are different from, additional to or
in conflict with those available to such Indemnifying Party (in which case such Indemnifying
Party shall not have the right to direct that portion of the defense of such Proceeding on
behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Indemnifying Party), in any of which events such reasonable fees and
expenses shall be borne by such Indemnifying Party and paid as incurred (it being
understood, however, that such Indemnifying Party shall not be liable for the expenses of
more than one separate counsel in any one Proceeding or series of related Proceedings
together with reasonably necessary local counsel representing the Indemnified Parties who
are parties to such action). An Indemnifying Party shall not be liable for any settlement
of such Proceeding effected without the written consent of such Indemnifying Party, but if
settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees
to indemnify and hold harmless an Indemnified Party from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified
Party for fees and expenses of counsel as contemplated by the second sentence of this
paragraph,
-24-
then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid
request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party
in accordance with such request prior to the date of such settlement and (iii) such
Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior
notice of its intention to settle. No Indemnifying Party shall, without the prior written
consent of any Indemnified Party, effect any settlement of any pending or threatened
Proceeding in respect of which such Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission of fault or
culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an
Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such
Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims
or actions referred to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, damages, expenses, liabilities, claims or
actions (i) in such proportion as is appropriate to reflect the relative benefits received
by the Guarantor and the Issuer, on the one hand, and by the Holders or the Initial
Purchasers, on the other hand, from the offering of the Registrable Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Guarantor and the Issuer, on the one hand, and
of the Holders or the Initial Purchasers, on the other hand, in connection with the
statements or omissions which resulted in such losses, damages, expenses, liabilities,
claims or actions, as well as any other relevant equitable considerations. The relative
fault of the Guarantor and the Issuer, on the one hand, and of the Holders or the Initial
Purchasers, on the other hand, shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Guarantor and the Issuer or by the
Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims
and actions referred to above shall be deemed to include any reasonable legal or other fees
or expenses reasonably incurred by such party in connection with investigating or defending
any Proceeding.
(e) The Guarantor, the Issuer, the Holders and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 6(d) above. Notwithstanding the
provisions of this Section 6, no Holder shall be required to
-25-
contribute any amount in excess of the amount by which the total price at which the
Registrable Securities giving rise to such contribution obligation and sold by such Holder
were offered to the public exceeds the amount of any damages which it 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. The Holders’ respective obligations to
contribute pursuant to this Section 6 are several in proportion to the respective amount of
Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not
joint. The remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party at law or
in equity.
(f) The indemnity and contribution provisions contained in this Section 6 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 Holder or the Initial Purchasers or any
person controlling any Holder or Initial Purchaser, or the Guarantor, or the Issuer, or the
Guarantor’s or the Issuer’s officers or directors or any person controlling the Guarantor or
the Issuer and (iii) the sale of any Registrable Security by any Holder.
7. Information Requirements.
(a) The Guarantor covenants that, if at any time before the end of the Effectiveness
Period it is not subject to the reporting requirements of the Exchange Act, it will
cooperate with any Holder of Registrable Securities and take such further action as any
Holder of Registrable Securities may reasonably request in writing (including, without
limitation, making such representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the exemptions
provided by Rule 144, Rule 144A and Regulation S under the Securities Act and customarily
taken in connection with sales pursuant to such exemptions. Upon the written request of any
Holder, the Guarantor shall deliver to such Holder a written statement as to whether the
Guarantor has complied with the reporting requirements of the Exchange Act, unless such a
statement has been included in the Guarantor’s most recent report filed with the SEC
pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Guarantor to register any of its
securities (other than the Common Stock) under any section of the Exchange Act.
(b) The Guarantor shall file the reports required to be filed by it under the Exchange
Act and shall comply with all other requirements set forth in the instructions to Form S-3
in order to allow the Guarantor to be eligible to file registration statements on Form S-3.
The Guarantor shall use its commercially reasonable best efforts to remain eligible,
pursuant to Rule 430B(b), to omit, from the prospectus that is filed as part of a
Registration Statement, the identities of selling securityholders and amounts of securities
-26-
to be registered on their behalf.
8. Underwritten Registrations.
(a) If any of the Registrable Securities covered by the Shelf Registration Statement
are to be offered and sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering (“Managing
Underwriters”) shall be selected by the holders of a majority of such Registrable
Securities to be included in such offering.
(b) No person may participate in any underwritten registration hereunder unless such
person (i) agrees to sell such person’s Registrable Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements.
(c) Notwithstanding anything herein to the contrary, in no event shall Registrable
Securities be offered and sold pursuant hereto through a Shelf Registration Statement
pursuant to an underwritten offering without the prior written agreement of the Guarantor.
9. Miscellaneous.
(a) Remedies. The Guarantor and the Issuer acknowledge and agree that any
failure by the Guarantor or the Issuer to comply with their obligations under this Agreement
may result in material irreparable injury to the Initial Purchasers and the Holders for
which there is no adequate remedy at law, that it will not be possible to measure damages
for such injuries precisely and that, in the event of any such failure, any Initial
Purchaser or Holder may obtain such relief as may be required to specifically enforce the
Guarantor’s and the Issuer’s obligations under this Agreement. The Guarantor and the Issuer
further agree to waive the defense in any action for specific performance that a remedy at
law would be adequate. Notwithstanding the foregoing two sentences, this Section 9(a) shall
not apply to the subject matter referred to in and contemplated by Section 2(e).
(b) No Conflicting Agreements. The Guarantor and the Issuer are not, as of the
date hereof, a party to, nor shall they, on or after the date of this Agreement, enter into,
any agreement with respect to the Guarantor’s securities that conflicts with the rights
granted to the Holders in this Agreement. The Guarantor and the Issuer represent and
warrant that the rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Guarantor’s or the Issuer’s securities under any other
agreements. The Guarantor and the Issuer will not take any action with respect to the
Registrable Securities which would adversely affect the ability of any of the Holders to
include such Registrable Securities in a registration undertaken pursuant to this Agreement.
The Guarantor represents and covenants that it has not granted, and shall
-27-
not grant, to any of its securityholders (other than the Holders in such capacity) the
right to include any of the Guarantor’s securities in any Shelf Registration Statement filed
pursuant to this Agreement.
(c) 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 Guarantor has
obtained the written consent of Holders of a majority of outstanding Registrable Securities;
provided, however, that, no consent is necessary from any of the Holders in
the event that this Agreement is amended, modified or supplemented for the purpose of curing
any ambiguity, defect or inconsistency that does not adversely affect the rights of any
Holders. Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a Shelf Registration
Statement and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the Registrable
Securities being sold by such Holders pursuant to such Shelf Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities outstanding at the time of any
such amendment, modification, supplement, waiver or consent or thereafter shall be bound by
any such amendment, modification, supplement, waiver or consent effected pursuant to this
Section 9(c), whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and shall be deemed
given (A) when made, if made by hand delivery, (B) upon confirmation, if made by telecopier,
(C) one (1) Business Day after being deposited with such courier, if made by overnight
courier or (D) on the date indicated on the notice of receipt, if made by first-class mail,
to the parties as follows:
(i) if to a Holder, at the most current address given by such Holder to the
Guarantor in a Notice and Questionnaire or any amendment thereto;
| (ii) | if to the Guarantor or the Issuer, to: | ||
| 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 Attention: Chief Financial Officer Telecopy No.: (000) 000-0000 |
|||
| (iii) | if to the Initial Purchasers, to: |
-28-
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
and
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Desk
Telecopy No.: 212-270-1063
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Desk
Telecopy No.: 212-270-1063
with a copy to (for informational purposes only):
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
and
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons identified
in this Section 9(d) in writing in accordance herewith.
(e) Majority of Registrable Securities. For purposes of determining what
constitutes holders of a majority of Registrable Securities, as referred to in this
Agreement, a majority shall constitute a majority in aggregate principal amount of
Registrable Securities, treating each relevant holder of shares of Underlying Common Stock,
Redemption or Repurchase Upon Designated Event of the Notes as a holder of the aggregate
principal amount of Notes in respect of which such Common Stock was issued.
(f) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder, Registrable Securities
held by the Guarantor or its “affiliates” (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders of Registrable
Securities, if the Initial Purchasers or such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities) shall
-29-
not be counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(g) Third Party Beneficiaries. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Guarantor and the Issuer, on the one hand, and
the Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or advisable to
protect their rights or the rights of Holders hereunder. The Trustee shall be entitled to
the rights granted to it pursuant to this Agreement.
(h) Successors and Assigns. Any person who purchases any Notes or Covered
Security from any Initial Purchaser or from any Holder shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchaser or such Holder, as the case may be.
This Agreement shall inure to the benefit of and be binding upon the respective successors
and assigns of each of the parties hereto and shall inure to the benefit of and be binding
upon each Holder of any Notes or Covered Security.
(i) 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 original and all of which taken together shall constitute one and the same
agreement.
(j) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
(l) Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, and the parties
hereto shall use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term, provision, covenant
or restriction, it being intended that all of the rights and privileges of the parties shall
be enforceable to the fullest extent permitted by law.
(m) Entire Agreement. This Agreement is intended by the parties hereto as a
final expression of their agreement and is 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 and the registration rights granted by the Guarantor with respect to the
Registrable Securities. Except as provided in the Purchase Agreement, 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 Guarantor with
-30-
respect to the Registrable Securities. This Agreement supersedes all prior agreements
and undertakings among the parties with respect to such registration rights. No party
hereto shall have any rights, duties or obligations other than those specifically set forth
in this Agreement.
(n) Termination. This Agreement and the obligations of the parties hereunder
shall terminate upon the end of the Effectiveness Period, except for any liabilities or
obligations under Section 4, Section 5 or Section 6 hereof and the obligations to make
payments of and provide for additional interest under Section 2(e) hereof to the extent such
additional interest accrues prior to the end of the Effectiveness Period and to the extent
any overdue additional interest accrues in accordance with the last paragraph of such
Section 2(e), each of which shall remain in effect in accordance with its terms.
(o) Submission to Jurisdiction. Except as set forth below, no claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement (“Claim”) may be commenced, prosecuted or continued in
any court other than the courts of the State of New York located in the City and County of
New York or in the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the Guarantor and
the Issuer hereby consents to the jurisdiction of such courts and personal service with
respect thereto. The Guarantor and the Issuer hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way relating to
this Agreement is brought by any third party against any Initial Purchaser. THE GUARANTOR
AND THE ISSUER HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
The Guarantor and the Issuer agrees that a final judgment in any such Proceeding brought in
any such court shall be conclusive and binding upon the Guarantor or the Issuer and may be
enforced in any other courts in the jurisdiction of which the Guarantor or the Issuer is or
may be subject, by suit upon such judgment.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-31-
In Witness Whereof, the parties have executed this Agreement as of the date first
written above.
| Very truly yours, | ||||||||
| Medical Properties Trust, Inc. | ||||||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||||||
| Name: Xxxxxx X. Xxxxx, Xx. | ||||||||
| Title: Chairman, President and CEO | ||||||||
| MPT Operating Partnership L.P. | ||||||||
| By: Medical Properties Trust, LLC | ||||||||
| Its: General Partner | ||||||||
| By: Medical Properties Trust, Inc. | ||||||||
| Its: Sole Member | ||||||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||||||
| Name: Xxxxxx X. Xxxxx, Xx. | ||||||||
| Title: Chairman, President and CEO | ||||||||
Accepted and agreed to as of the date
first above written, on behalf of
itself and the other several Initial
Purchasers:
first above written, on behalf of
itself and the other several Initial
Purchasers:
UBS Securities LLC
By:
|
/s/ Xxxx Xxxxxxxx | |||
| Name: Xxxx Xxxxxxxx | ||||
| Title: Managing Director | ||||
By:
|
/s/ Xxxxx Xxxxxxxx | |||
| Name: Xxxxx Xxxxxxxx | ||||
| Title: Direcotr | ||||
X.X. Xxxxxx Securities Inc.
|
||||
By:
|
/s/ Santosh Screenivisan | |||
| Name: Santosh Screenivisan | ||||
| Title: Vice President | ||||
