Exhibit 4.2
Execution
Version
Stream Global Services,
Inc.
11.25% Senior Secured Notes due
2014
fully and unconditionally
guaranteed as to the
payment of principal,
premium,
if any, interest and special
interest, if any, by the Guarantors
listed on the signature pages
hereto
Exchange and Registration
Rights Agreement
October 1, 2009
Goldman, Sachs &
Co.,
Wells Fargo Securities, LLC
Morgan Stanley & Co.
Incorporated
RBC Capital Markets Corporation
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Stream Global Services, Inc., a
Delaware corporation (the “Company” ), proposes
to issue and sell to the Purchasers (as defined herein) upon the
terms set forth in the Purchase Agreement (as defined herein)
$200,000,000 in aggregate principal amount of its 11.25% Senior
Secured Notes due 2014, which are fully and unconditionally
guaranteed by the Guarantors (as defined herein). As an inducement
to the Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company and the Guarantors agree with the
Purchasers for the benefit of holders (as defined herein) from time
to time of the Registrable Securities (as defined herein) as
follows:
1. Certain Definitions . For
purposes of this Exchange and Registration Rights Agreement (this
“Agreement” ), the following terms shall have
the following respective meanings:
“ Base Interest ”
shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Agreement.
“ broker-dealer ”
shall mean any broker or dealer registered with the Commission
under the Exchange Act.
“ Business Day ”
shall have the meaning set forth in Rule 13e-4(a)(3)
promulgated by the Commission under the Exchange Act, as the same
may be amended or succeeded from time to time.
“ Certificated Note
” shall have the meaning assigned thereto in the
Indenture.
“ Closing Date ”
shall mean the date on which the Securities are initially
issued.
“ Collateral Trustee
” shall have the meaning assigned thereto in the
Indenture.
“ Commission ”
shall mean the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act
or the Securities Act, whichever is the relevant statute for the
particular purpose.
“ EDGAR System ”
means the EDGAR filing system of the Commission and the rules and
regulations pertaining thereto promulgated by the Commission in
Regulation S-T under the Securities Act and the Exchange Act, in
each case as the same may be amended or succeeded from time to time
(and without regard to format).
“ Effective Time
,” in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the
Exchange Offer Registration Statement otherwise becomes effective
and (ii) a Shelf Registration, shall mean the time and date as
of which the Commission declares the Shelf Registration Statement
effective or as of which the Shelf Registration Statement otherwise
becomes effective.
“ Electing Holder
” shall mean any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or
Section 3(d)(iii) and the instructions set forth in the
Notice and Questionnaire.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder, as
the same may be amended or succeeded from time to time.
“ Exchange Offer
” shall have the meaning assigned thereto in
Section 2(a) .
“ Exchange Registration
” shall have the meaning assigned thereto in
Section 3(c) .
“ Exchange Offer
Registration Statement ” shall have the meaning assigned
thereto in Section 2(a) .
“ Exchange Securities
” shall have the meaning assigned thereto in
Section 2(a) .
“ FINRA ” shall
mean the Financial Industry Regulatory Authority, Inc.
“ Global Note ”
shall have the meaning assigned thereto in the
Indenture.
“ Guarantor ”
shall have the meaning assigned thereto in the
Indenture.
“ holder ” shall
mean each of the Purchasers and other persons who acquire
Registrable Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any
Registrable Securities.
“Indenture” shall mean the Indenture, dated as of
October 1, 2009, among the Company, the Guarantors, Wells
Fargo Bank, National Association, as trustee, as the same may be
amended from time to time.
“Notice and
Questionnaire ”
means a Notice of Registration Statement and Selling Securityholder
Questionnaire substantially in the form of Exhibit A
hereto.
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“ Note Guarantee
” shall have the meaning assigned thereto in the definition
of “Securities.”
“ person ” shall
mean a corporation, limited liability company, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
“Purchase
Agreement” shall
mean the Purchase Agreement, dated as of September 28, 2009,
between Goldman, Sachs & Co., as representative of the
several Purchasers named therein, the Company and the Guarantors
relating to the Securities.
“ Purchasers ”
shall mean the Purchasers named in Schedule I to the Purchase
Agreement.
“Registrable
Securities ” shall
mean the Securities; provided, however, that a Security
shall cease to be a Registrable Security upon the earliest to occur
of the following: (i) the Security has been exchanged for an
Exchange Security in an Exchange Offer as contemplated in
Section 2(a) , (ii) following the exchange by a
broker-dealer in the Exchange Offer of the Security for an Exchange
Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which
such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration
Statement, or (iv) the date on which such note is actually
sold pursuant to Rule 144 under the Securities Act, provided that a
note will not cease to be a Registrable Security for purposes of
the Exchange Offer by virtue of this clause (iv).
“ Registration Default
” shall have the meaning assigned thereto in
Section 2(c) .
“ Registration Default
Period ” shall have the meaning assigned thereto in
Section 2(c) .
“ Registration Expenses
” shall have the meaning assigned thereto in
Section 4 .
“ Resale Period ”
shall have the meaning assigned thereto in Section 2(a)
.
“ Restricted Holder
” shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who
acquires Exchange Securities outside the ordinary course of such
holder’s business, (iii) a holder who has arrangements
or understandings with any person to participate in the Exchange
Offer for the purpose of distributing Exchange Securities and
(iv) a holder that is a broker-dealer, but only with respect
to Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Securities acquired
by the broker-dealer directly from the Company.
“ Rule 144
,” “ Rule 405 ”, “
Rule 415 ”, “ Rule 424 ”,
“ Rule 430B ” and “
Rule 433 ” shall mean, in each case, such rule
promulgated by the Commission under the Securities Act (or any
successor provision), as the same may be amended or succeeded from
time to time.
“Securities” shall mean, collectively, the $200,000,000 in
aggregate principal amount of the Company’s 11.25% Senior
Secured Notes due 2014 to be issued and sold to the Purchasers
pursuant to the Purchase Agreement, and securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
Each Security is entitled to the benefit of the guarantees provided
by the Guarantors in the Indenture (the “ Note
Guarantees ”) and, unless the context otherwise requires,
any reference herein to a “Security,” an
“Exchange Security” or a “Registrable
Security” shall include a reference to the related Note
Guarantees.
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“Securities
Act” shall mean the
Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, as the same may be
amended or succeeded from time to time.
“Shelf
Registration” shall
have the meaning assigned thereto in Section 2(b)
.
“Shelf Registration
Statement” shall
have the meaning assigned thereto in Section 2(b)
.
“Special
Interest ” shall
have the meaning assigned thereto in Section 2(c)
.
“ Suspension Period
” shall have the meaning assigned thereto in
Section 2(b) .
“ Trust Indenture Act
” shall mean the Trust Indenture Act of 1939, as amended, and
the rules and regulations promulgated by the Commission thereunder,
as the same may be amended or succeeded from time to
time.
“Trustee”
shall mean Wells Fargo Bank,
National Association, as trustee under the Indenture, together with
any successors thereto in such capacity.
Unless the context otherwise
requires, any reference herein to a “Section” or
“clause” refers to a Section or clause, as the case may
be, of this Agreement, and the words “herein,”
“hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration Under the
Securities Act .
(a) Except as set forth in
Section 2(b) below, the Company and the Guarantors agree to
file under the Securities Act, on or prior to 180 days after the
Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the “Exchange Offer
Registration Statement” , and such offer, the
“Exchange Offer” ) any and all of the Securities
for a like aggregate principal amount of debt securities issued by
the Company and guaranteed by the Guarantors, which debt securities
and guarantees will be substantially identical to the Securities
and the related Note Guarantees, respectively (and are entitled to
the benefits of the Indenture), except that they will be registered
pursuant to an effective registration statement under the
Securities Act and will not contain provisions for Special Interest
contemplated by Section 2(c) below (such new debt securities
hereinafter called the “Exchange Securities” ).
The Company and the Guarantors agree to use their commercially
reasonable efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act on or prior
to 270 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and
will comply with all applicable tender offer rules and regulations
under the Exchange Act. Unless the Exchange Offer would not be
permitted by applicable law or Commission policy, the Company
further agrees to (i) commence the Exchange Offer, and
(ii) use all commercially reasonable efforts to issue on or
prior to 30 Business Days, or longer, if required by applicable
securities laws, after the date on which the Exchange Offer
Registration Statement was declared effective by the SEC, exchange
notes in exchange for all notes properly tendered and not validly
withdrawn prior thereto in the Exchange Offer. The Exchange Offer
will be deemed to have been “completed” only
(i) if the debt securities and related guarantees received by
holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and
the
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Exchange Act and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America and
(ii) upon the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities
that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is
at least 20 and not more than 30 Business Days following the
commencement of the Exchange Offer. The Company and the Guarantors
agree (x) to include in the Exchange Offer Registration
Statement a prospectus for use in any resales by any holder of
Exchange Securities that is a broker-dealer and (y) to keep
such Exchange Offer Registration Statement effective for a period
(the “Resale Period” ) beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 180 th day after the Exchange Offer has been completed
or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Offer Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in
Subsections 6(a), (c), (d) and (e).
(b) If (i) the Company and the
Guarantors are not permitted to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or
Commission policy, or (ii) any holder of Registrable
Securities notifies the Company prior to the 20
th Business Day following the consummation of the
Exchange Offer that: (A) it is prohibited by law or Commission
policy from participating in the Exchange Offer, (B) it may
not resell the Exchange Securities acquired by it in the Exchange
Offer to the public without delivering a prospectus contained in
the Exchange Offer Registration Statement is not appropriate or
available for such resales or (C) it is a broker-dealer and
owns Securities acquired directly from the Company or an affiliate
of the Company, then the Company and the Guarantors shall, in lieu
of conducting the Exchange Offer contemplated by Section 2(a),
file under the Securities Act a “shelf” registration
statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar
rule that may be adopted by the Commission (such filing, the
“Shelf Registration” and such registration
statement, the “Shelf Registration Statement” ).
The Company and the Guarantors agree to use their commercially
reasonable efforts to file the Shelf Registration Statement with
the Commission on or prior to 90 days after such filing obligation
arises and to cause the Shelf Registration Statement to be declared
effective on or prior to 180 days after such Shelf Registration
Statement filing obligation arises (but in no event earlier than
the Company’s and the Guarantors’ obligation with
respect to the Exchange Offer Registration Statement);
provided , that if at any time the Company is or becomes a
“well-known seasoned issuer” (as defined in
Rule 405) and is eligible to file an “automatic shelf
registration statement” (as defined in Rule 405), then
the Company and the Guarantors shall file the Shelf Registration
Statement in the form of an automatic shelf registration statement
as provided in Rule 405. The Company and the Guarantors agree
to use all commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective for a period ending
on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities
outstanding. No holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable
Securities unless such holder is an Electing Holder. The Company
and the Guarantors agree, after the Effective Time of the Shelf
Registration Statement and promptly upon the request of any holder
of Registrable Securities that is not then an Electing Holder, to
use all commercially reasonable efforts to enable such holder to
use the prospectus forming a part thereof for resales of
Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement (whether by post-effective
amendment thereto or by filing a prospectus pursuant
5
to Rules 430B and 424(b) under the
Securities Act identifying such holder), provided, however,
that nothing in this sentence shall relieve any such holder of the
obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with
Section 3(d)(iii). Notwithstanding anything to the contrary in
this Section 2(b), upon notice to the Electing Holders, the
Company may suspend the use or the effectiveness of such Shelf
Registration Statement, or extend the time period in which it is
required to file the Shelf Registration Statement, for up to 30
consecutive days and up to 90 days in the aggregate, in each case
in any 12-month period (a “Suspension Period” )
if the Board of Directors of the Company determines that there is a
valid business purpose for suspension of the Shelf Registration
Statement; provided that the Company shall promptly notify
the Electing Holders when the Shelf Registration Statement has been
suspended and when such Shelf Registration Statement may once again
be used or is effective and the Electing Holders agree not to offer
or sell any Registrable Securities pursuant to such Shelf
Registration Statement during the Suspension Period.
(c) If (i) the Company and the
Guarantors fail to file any of the registration statements required
by this Agreement on or before the date specified for such filing
in Section 2(a) or Section 2(b) , or
(ii) any such registration statement is not declared effective
by the Commission on or prior to the date specified for such
effectiveness (the “ Effectiveness Target Date
”), or (iii) the Company and the Guarantors fail to
consummate the Exchange Offer within 30 Business Days of the
Effectiveness Target Date with respect to the Exchange Offer
Registration Statement, or (iv) the Exchange Offer
Registration Statement or the Shelf Registration Statement required
by Section 2(a) or Section 2(b) ,
respectively, is declared effective but thereafter ceases to be
effective or usable in connection with resales or exchanges of
Registrable Securities during the periods specified in
Section 2(a) or Section 2(b) , as
applicable, either because it is withdrawn by the Company or it
becomes subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as
specifically permitted herein, including, with respect to any Shelf
Registration Statement, during any applicable Suspension Period in
accordance with the last sentence of Section 2(b) )
without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to
in clauses (i) through (iv) , a “
Registration Default ” and each period during which a
Registration Default has occurred and is continuing, a “
Registration Default Period ”), then, as liquidated
damages for such Registration Default, the Company and the
Guarantors will pay special interest (“ Special
Interest ”), in addition to the Base Interest, to each
holder of Registrable Securities, with respect to the first 90-day
period immediately following the occurrence of the first
Registration Default in an amount equal to one-quarter of one
percent (0.25%) per annum on the principal amount of
Registrable Securities held by such holder. The amount of Special
Interest will increase by an additional one-quarter of one percent
(0.25%) per annum on the principal amount of Registrable
Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of
Special Interest for all Registration Defaults of 1.0% per
annum .
All accrued Special Interest will be
paid by the Company and the Guarantors on each interest payment
date to the Global Note holder by wire transfer of immediately
available funds or by federal funds check and to holders of
Certificated Notes by wire transfer to the accounts specified by
them or by mailing checks to their registered addresses if no such
accounts have been specified. Following the cure of all
Registration Defaults, the accrual of Special Interest will
cease.
(d) The Company shall take, and
shall cause the Guarantors to take, all actions necessary or
advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Note Guarantees
under any Exchange Offer Registration Statement or Shelf
Registration Statement, as applicable.
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(e) Any reference herein to a
registration statement or prospectus as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time; and any reference herein to
any post-effective amendment to a registration statement or to any
prospectus supplement as of any time shall be deemed to include any
document incorporated, or deemed to be incorporated, therein by
reference as of such time.
3. Registration Procedures
.
If the Company and the Guarantors
file a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time
of the Exchange Registration or any Shelf Registration, whichever
may occur first, the Company shall qualify the Indenture under the
Trust Indenture Act.
(b) In the event that such
qualification would require the appointment of a new trustee under
the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(c) In connection with the
Company’s and the Guarantors’ obligations with respect
to the registration of Exchange Securities as contemplated by
Section 2(a) (the “Exchange Registration”
), if applicable, the Company and the Guarantors shall:
(i) prepare and file with the
Commission, on or prior to 180 days after the Closing Date, or if
the 180 th
day is not a Business Day, the first
Business Day thereafter, an Exchange Offer Registration Statement
on any form which may be utilized by the Company and the Guarantors
and which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a) , and use all
commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective on or prior to 270 days
after the Closing Date;
(ii) as soon as practicable prepare
and file with the Commission such amendments and supplements to
such Exchange Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness of such Exchange Offer Registration Statement for the
periods and purposes contemplated in Section 2(a) and
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
Exchange Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act, as
such broker-dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each
broker-dealer that has requested or received copies of the
prospectus included in such Exchange Offer Registration Statement,
and confirm such advice in writing, (A) when such Exchange
Offer Registration Statement or the
7
prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Exchange Offer Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such Exchange Offer Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
such Exchange Offer Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company contemplated
by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose,
(F) the occurrence of any event that causes the Company to
become an “ineligible issuer” as defined in
Rule 405, or (G) if at any time during the Resale Period
when a prospectus is required to be delivered under the Securities
Act, that such Exchange Offer Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does
not conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act or contains an
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
such statements were made, not misleading);
(iv) in the event that the Company
and the Guarantors would be required, pursuant to
Section 3(c)(iii)(G) , to notify any broker-dealers
holding Exchange Securities (except as otherwise permitted during
any Suspension Period), promptly prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which such statements were made, not misleading;
(v) use all commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Offer Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(vi) use all commercially reasonable
efforts to (A) register or qualify the Exchange Securities
under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, to the extent required by such
laws, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period, (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions and (D) obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Exchange Registration, the Exchange Offer and the offering and
sale of Exchange Securities by broker-dealers during the Resale
Period; provided, however, that neither the Company nor the
Guarantors shall be required
8
for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi) ,
(2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or other governing documents or any agreement between it
and its stockholders;
(vii) obtain a CUSIP number for all
Exchange Securities, not later than the applicable Effective Time;
and
(viii) comply with all applicable
rules and regulations of the Commission, and make generally
available to its securityholders no later than 18 months after the
Effective Time of such Exchange Offer Registration Statement, an
“earning statement” of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder).
(d) In connection with the
Company’s and the Guarantors’ obligations with respect
to the Shelf Registration, if applicable, the Company and the
Guarantors shall:
(i) prepare and file with the
Commission, within the time periods specified in
Section 2(b) , a Shelf Registration Statement on any
form which may be utilized by the Company and which shall register
all of the Registrable Securities for resale by the holders thereof
in accordance with such method or methods of disposition as may be
specified by the holders of Registrable Securities as, from time to
time, may be Electing Holders and use all commercially reasonable
efforts to cause such Shelf Registration Statement to become
effective within the time periods specified in
Section 2(b) ;
(ii) mail the Notice and
Questionnaire to the holders of Registrable Securities (A) not
less than 30 days prior to the anticipated Effective Time of the
Shelf Registration Statement, or (B) in the case of an
“automatic shelf registration statement” (as defined in
Rule 405), mail the Notice and Questionnaire to the holders of
Registrable Securities not later than the Effective Time of such
Shelf Registration Statement, and in any such case no holder shall
be entitled to be named as a selling securityholder in the Shelf
Registration Statement, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless and until such holder has returned a
completed and signed Notice and Questionnaire to the
Company;
(iii) after the Effective Time of
the Shelf Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed
Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare
and file with the Commission such amendments and supplements to
such Shelf Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) and as may be required by the
applicable rules and regulations of the
9
Commission and the instructions
applicable to the form of such Shelf Registration Statement, and
furnish to the Electing Holders copies of any such supplement or
amendment simultaneously with or prior to its being used or filed
with the Commission to the extent such documents are not publicly
available on the Commission’s EDGAR System;
(v) comply with the provisions of
the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration Statement
in accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide the Electing Holders
and not more than one counsel for all the Electing Holders the
opportunity to review such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) for a reasonable period prior
to the filing of such Shelf Registration Statement, and throughout
the period specified in Section 2(b) , make available
at reasonable times at the Company’s principal place of
business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) who shall
certify to the Company that they have a current intention to sell
the Registrable Securities pursuant to the Shelf Registration such
financial and other information and books and records of the
Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary (and in the case of
counsel, does not violate an attorney client privilege, in such
counsel’s reasonable belief), in the judgment of the
respective counsel referred to in Section 3(d)(vi) , to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however,
that the foregoing inspection and information gathering on behalf
of the Electing Holders shall be conducted by one counsel
designated by the holders of at least a majority in aggregate
principal amount of the Registrable Securities held by the Electing
Holders at the time outstanding; provided further that each
such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by the Company as being confidential, until such time as
(A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Shelf Registration
Statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and
only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information
is required to be set forth in such Shelf Registration Statement or
the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the Securities Act and does not
contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which such statements were made, not misleading;
10
(viii) promptly notify each of the
Electing Holders and confirm such advice in writing, (A) when
such Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company set forth in Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (F) the occurrence of any event that causes the
Company to become an “ineligible issuer” as defined in
Rule 405, or (G) if at any time when a prospectus is
required to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act or contains an untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which such statements were made,
not misleading;
(ix) use all commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or any
post-effective amendment thereto at the earliest practicable
date;
(x) if requested by any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
Electing Holder specifies should be included therein relating to
the terms of the sale of such Registrable Securities, including
information with respect to the principal amount of Registrable
Securities being sold by such Electing Holder, the name and
description of such Electing Holder, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof and with respect to any
other terms of the offering of the Registrable Securities to be
sold by such Electing Holder; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish to each Electing Holder
and the counsel referred to in Section 3(d)(vi) an
executed copy (or a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder
of Registrable Securities, upon request) and documents incorporated
by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested
by such Electing Holder) and of the prospectus included in such
Shelf Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the
Trust Indenture Act to the extent such documents are not available
through the Commission’s EDGAR System, and such other
documents, as such Electing Holder may reasonably request in order
to facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder and to permit
11
such Electing Holder to satisfy the
prospectus delivery requirements of the Securities Act; and subject
to Section 3(e) , the Company hereby consents to the
use of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each such
Electing Holder (subject to any applicable Suspension Period), in
each case in the form most recently provided to such person by the
Company, in connection with the offering and sale of the
Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use all commercially
reasonable efforts to (A) register or qualify the Registrable
Securities to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions
as any Electing Holder shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions during the period the Shelf
Registration Statement is required to remain effective under
Section 2(b) and for so long as may be necessary to
enable any such Electing Holder to complete its distribution of
Registrable Securities pursuant to such Shelf Registration
Statement, (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing
Holder to consummate the disposition in such jurisdictions of such
Registrable Securities and (D) obtain the consent or approval
of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Shelf Registration or
the offering or sale in connection therewith or to enable the
selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities; provided,
however, that neither the Company nor the Guarantors shall be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this
Section 3(d)(xii) , (2) consent to general service
of process in any such jurisdiction or become subject to taxation
in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or other governing
documents or any agreement between it and its
stockholders;
(xiii) unless any Registrable
Securities shall be in book-entry only form, cooperate with the
Electin
