EXHIBIT 4.2
NewPage
Corporation
11.375% Senior Secured Notes due
2014
unconditionally guaranteed as to
the
payment of principal,
premium,
if any, and interest by
the
Guarantors named on the signature
pages hereto
Exchange and Registration
Rights Agreement
September 30, 2009
Credit Suisse Securities (USA)
LLC
Goldman, Sachs & Co.
Citigroup Global Markets Inc.
As representatives of
the several Purchasers
named in Schedule I to
the Purchase Agreement
c/o Credit Suisse Securities (USA)
LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
NewPage Corporation, 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) $1.7 billion in
aggregate principal amount of its 11.375% Senior Secured Notes due
2014 specified above, which are 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.
The term “
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.
“ Closing Date ”
shall mean the date on which the Securities are initially
issued.
“ 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 or any replacement system thereof 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 Registration Statement effective or as of which the
Exchange 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) hereof 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) hereof.
“ Exchange Registration
” shall have the meaning assigned thereto in
Section 3(c).
“ Exchange Registration
Statement ” shall have the meaning assigned thereto in
Section 2(a) hereof.
“ Exchange Securities
” shall have the meaning assigned thereto in
Section 2(a) hereof.
“ FINRA ” shall
mean the Financial Industry Regulatory Authority, Inc.
“ Guarantor ”
shall have the meaning assigned thereto in the
Indenture.
The term “ holder
” shall mean each of the Purchasers and other persons who
acquire Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any
Securities.
“ Indenture ”
shall mean the Indenture, dated as of September 30, 2009,
among the Company, the Guarantors and the Trustee, as the same
shall be amended and supplemented 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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The term “ 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 17, 2009, among the Purchasers, 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) in the
circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof (provided that
any Exchange Security that, pursuant to the last two sentences of
Section 2(a) hereof, is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until
resale of such Registrable Security has been effected within the
Resale Period); (ii) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement
registering such Security under the Securities Act has been
declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a
manner contemplated by such effective Shelf Registration Statement;
(iii) the first date on or after the two year anniversary of
the date of the Indenture that such security is eligible for sale
pursuant to Rule 144 under the Securities Act without any volume or
manner limitations pursuant thereto; or (iv) such Security
shall cease to be outstanding.
“ Registration Default
” shall have the meaning assigned thereto in
Section 2(c) hereof.
“ Registration Default
Period ” shall have the meaning assigned thereto in
Section 2(c) hereof.
“ Registration Expenses
” shall have the meaning assigned thereto in Section 4
hereof.
“ Resale Period ”
shall have the meaning assigned thereto in Section 2(a)
hereof.
“ 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 $1.7 billion in aggregate principal
amount of the Company’s 11.375% 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 “ 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 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) hereof.
“ Shelf Registration
Statement ” shall have the meaning assigned thereto in
Section 2(b) hereof.
“ Special Interest
” shall have the meaning assigned thereto in
Section 2(c) hereof.
“ Suspension Period
” shall have the meaning assigned thereto in
Section 2(b) hereof.
“ 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 The Bank of New York Mellon, 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, as soon as practicable, but no later
than 120 days after the Closing Date, or if the 120
th day is not a Business Day, the first Business
Day thereafter, a registration statement relating to an offer to
exchange (such registration statement, the “Exchange
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 are substantially identical to the Securities and
the related Guarantees, respectively (and are entitled to the
benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified
under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under
the Securities Act and do not contain provisions for Special
Interest contemplated in Section 2(c) below (such new debt
securities hereinafter called “Exchange
Securities” ). The Company and the Guarantors agree to
use all commercially reasonable efforts to cause the Exchange
Registration Statement to become effective under the Securities Act
as soon as reasonably practicable, but no later than 210 days after
the Closing Date, or if the 210 th day is not a Business Day, the first Business
Day thereafter. 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 and the Guarantors further
agree to use all commercially reasonable efforts to
(i) commence the Exchange Offer promptly (but no later than 45
Business Days) following the Effective Time of such Exchange
Registration Statement, (ii) hold the Exchange Offer open for
at least 20 Business Days in
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accordance with Regulation 14E
promulgated by the Commission under the Exchange Act and
(iii) exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn
promptly following the expiration of 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 Exchange Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement
applicable to resales by any broker-dealer pursuant to an Exchange
Offer in exchange for Registrable Securities other than those
acquired by the broker-dealer directly from the Company) 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 Business Days 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 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 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 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) hereof.
(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, (ii) the Exchange Offer has not been
completed within 255 days following the Closing Date or
(iii) any holder of Registrable Securities notifies the
Company prior to the 15 th Business Day following 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 and the
prospectus supplement contained in the Exchange 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, the
Company and the Guarantors shall, in lieu of (or, in the case of
clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act as
soon as reasonably practicable, but no later than 45 Business Days
after the time such obligation to file arises, 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 all commercially reasonable efforts
to cause the Shelf Registration Statement to become or be declared
effective no later than 150 days after such Shelf Registration
Statement is filed; 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 and 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
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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 take any action reasonably
necessary to enable such holder to use the prospectus forming a
part thereof for resales of Registrable Securities, including,
without limitation, any action necessary to identify such holder as
a selling securityholder in the Shelf Registration Statement
(whether by post-effective amendment thereto or by filing a
prospectus pursuant 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) hereof. The
Company further agrees to supplement or make amendments to the
Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to each Electing
Holder copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
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 60
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 may once again be used or is
effective.
(c) In the event that (i) the
Company and the Guarantors have not filed the Exchange Registration
Statement or the Shelf Registration Statement on or before the date
on which such registration statement is required to be filed
pursuant to Section 2(a) or Section 2(b) hereof,
respectively, (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which
such registration statement is required to become or be declared
effective pursuant to Section 2(a) or Section 2(b),
respectively, (iii) the Exchange Offer, if any, has not been
completed within 45 Business Days after the Effective Time of the
Exchange Registration Statement relating to the Exchange Offer (if
the Exchange Offer is then required to be made) or (iv) any
Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or Section 2(b) hereof is filed
and declared effective but shall thereafter either be withdrawn by
the Company or shall become 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 within 60 days of such
suspension (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, subject to the
provisions of Section 9(b), special interest (“
Special Interest ”), in addition to the Base Interest,
shall accrue on all Registrable Securities then outstanding at a
per annum rate of 0.25% for the first 90 days of the Registration
Default Period, at a per annum rate of 0.50% for the second 90 days
of the Registration Default Period, at a per annum rate of 0.75%
for the third 90 days of the Registration Default Period and at a
per annum rate of 1.0% thereafter for the remaining portion of the
Registration Default Period.
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(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 Guarantees under any
Exchange Registration Statement or Shelf Registration Statement, as
applicable.
(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) hereof, 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) hereof (the “ Exchange Registration
”), if applicable, the Company and the Guarantors shall, as
soon as reasonably practicable (or as otherwise
specified):
(i) prepare and file with the
Commission, as soon as reasonably practicable, but no later than
120 days after the Closing Date, or if the 120
th day is not a Business Day, the first Business
Day thereafter, an Exchange 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) hereof, and use all commercially
practicable efforts to cause such Exchange Registration Statement
to become effective as soon as reasonably practicable thereafter,
but no later than 210 days after the Closing Date, or if the
210 th
day is not a Business Day, the first
Business Day thereafter;
(ii) as soon as reasonably
practicable prepare and file with the Commission such amendments
and supplements to such Exchange Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement
for the periods and purposes contemplated in Section 2(a)
hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to
the form of such Exchange 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 and the rules and regulations of the Commission thereunder, as
such broker-dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of
Exchange Securities;
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(iii) promptly notify each
broker-dealer that has requested or received copies of the
prospectus included in such Exchange Registration Statement, and
confirm such advice in writing, (A) when such Exchange
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 Exchange 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 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 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 hereof 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 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 and the rules and
regulations of the Commission thereunder 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 not misleading in light of the circumstances then
existing;
(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 the rules and
regulations of the Commission thereunder 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 not misleading in light of the circumstances
then existing;
(v) use all commercially reasonable
efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange 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) hereof 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
8
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 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 formation, certificate of
incorporation, limited liability company agreement, by-laws or
other governing documents, as applicable, or any agreement between
it and its stockholders;
(vii) provide 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 as soon as reasonably practicable
but no later than eighteen months after the Effective Time of such
Exchange 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, as soon as practicable (or as otherwise
specified):
(i) prepare and file with the
Commission, as soon as reasonably practicable, but in any case
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 (subject to any
applicable Suspension Period, as defined in Section 2(b)
hereof) as soon as reasonably practicable but in any case within
the time periods specified in Section 2(b) hereof;
(ii) (A) mail the Notice and
Questionnaire to the holders of Registrable Securities 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
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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 reasonably
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) hereof and as may be
required by the applicable rules and regulations of the 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 participate in the preparation of 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) hereof, 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) hereof 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, 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) hereof, 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 and 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,
but not because of disclosure by such person or its representatives
that was otherwise in breach of this provision), 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
10
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 federal securities laws and the rules and
regulations of the Commission 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 not misleading in light of the circumstances
then existing;
(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 hereof 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 and the rules and regulations of
the Commission thereunder 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 not
misleading in light of the circumstances then existing;
(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 reasonably 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;
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(xi) furnish to each Electing Holder
and the counsel referred to in Section 3(d)(vi) hereof 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 and the rules and regulations of the Commission
thereunder 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 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 (other than during any
Suspension Period) 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 (as long as such distribution is
commenced during the period the Shelf Registration Statement is
required to remain effective under Section 2(b) above) 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 formation,
certificate of incorporation, limited liability company agreement
or by-laws or other governing documents, as applicable, or any
agreement between it and its stockholders;
12
(xiii) unless any Registrable
Securities shall be in book-entry only form, cooperate with the
Electing Holders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold,
which certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be printed,
penned, lithographed, engraved or otherwise produced by any
combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
(xiv) provide a CUSIP number for all
Securities that have been registered under the Securities Act, not
later than the applicable Effective Time;
(xv) notify in writing each holder
of Registrable Securities of any proposal by the Company to amend
or waive any provision of this Agreement pursuant to
Section 9(h) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of
the amendment or waiver proposed or effected, as the case may be;
and
(xvi) comply with all applicable
rules and regulations of the Commission and any national securities
exchange or any quotation service on which the Securities may be
listed or quoted, as applicable, and make generally available to
its securityholders as soon as reasonably practicable but in any
event not later than eighteen months after the Effective Time of
such Shelf 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).
(e) In the event that the Company
would be required, pursuant to Section 3(d)(viii)(G) above, to
notify the Electing Holders, the Company shall promptly prepare and
furnish to each of the Electing Holders a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder 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 not misleading in light of the circumstances
then existing. Each Electing Holder agrees that upon receipt of any
notice from the Company pursuant to Section 3(d)(viii)(G)
hereof, such Electing Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities
until such Electing Holder shall have received copies of such
amended or supplemented prospectus, and if so directed by the
Company, such Electing Holder shall deliver to the
Compan
