Exhibit 4.3
EXECUTION VERSION
Global Crossing
Limited
12% Senior Secured Notes Due
2015
Exchange and Registration
Rights Agreement
September 22, 2009
Goldman, Sachs &
Co.,
Credit Suisse Securities (USA) LLC
J.P. Morgan Securities Inc.
As representatives of
the several Purchasers
named in Schedule I to
the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Global Crossing Limited, an exempted
company with limited liability formed under the laws of Bermuda
(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) $750.0 million in aggregate
principal amount of 12% Senior Secured Notes due 2015, 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.
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“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 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) 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 Registration
Statement” shall
have the meaning assigned thereto in Section 2(a).
“Exchange
Securities” shall
have the meaning assigned thereto in Section 2(a).
“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 trust indenture, dated as of
September 22, 2009, between the Company, the Guarantors and
Wilmington Trust FSB, 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.
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 11, 2009,
between the Purchasers, the Company and the Guarantors relating to
the Securities.
“Purchasers” shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
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“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), the Security has been exchanged for an Exchange
Security in an Exchange Offer as contemplated in Section 2(a)
( provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), 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), 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; or (iii) such Security shall
cease to be outstanding.
“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 $750.0 million in
aggregate principal amount of the Company’s 12% Senior
Secured Notes due 2015 to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant
to the Indenture. Each Security is entitled to the benefit of the
guarantee provided by the Guarantors in the Indenture (the
“Guarantee” ) 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
Guarantee.
“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).
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“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 Wilmington Trust FSB, 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, 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 the Indenture), 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
no later than 365 days after the Closing Date; provided ,
that if on or prior to 270 days after the Closing Date the Company
has not received all regulatory or other approvals necessary for
each Limited Guarantor (as defined in the Indenture), to provide a
Full and Unconditional (as defined in the Indenture) guarantee of
the obligations of the Company under the Securities and the
Indenture incurred on the date of the Indenture (and any related
Exchange Securities issued pursuant to this Agreement) and has
provided an officer’s certificate to the Trustee stating that
the Company has complied with its obligations under
Section 4.22 of the Indenture, this deadline shall be extended
by 90 days. 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 use all
commercially reasonable efforts to (i) commence the Exchange
Offer promptly (but no later than 10 Business Days) following the
Effective Time of such Exchange Registration Statement,
(ii) hold the Exchange Offer open for at least 20 Business
Days in 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 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
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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 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).
(b) If (i) on or prior to the
time the Exchange Offer is completed existing law or Commission
interpretations are changed such that the debt securities or the
related guarantees received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder
without restriction under the Securities Act, (ii) the
Effective Time of the Exchange Registration Statement is not within
455 days following the Closing Date and the Exchange Offer has not
been completed within 30 Business Days of such Effective Time or
(iii) any holder of Registrable Securities notifies the
Company prior to the 20 th Business Day following the completion 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 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,
then 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 no
later than 30 days after the time such obligation to file arises
(but no earlier than 90 days after the Closing Date), 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 90 days
after such Shelf Registration Statement filing obligation arises
(but no earlier than 180 days after the Closing Date);
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
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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). 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), respectively,
or (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, or (iii) the Exchange Offer has not been
completed within 30 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) 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 (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. Special Interest shall accrue and be
payable only with respect to a single Registration Default at any
given time, notwithstanding the fact that multiple Registration
Defaults may exist at such time.
(d) The Company shall take, and
shall cause the Guarantors to take, all actions necessary or
advisable to be taken by it 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.
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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, 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), and use all commercially
reasonable efforts to cause such Exchange Registration Statement to
become effective no later than 365 days after the Closing Date;
provided, that if on or prior to 270 days after the Closing Date
the Company has not received all regulatory or other approvals
necessary for each Limited Guarantor (as defined in the Indenture),
to provide a Full and Unconditional (as defined in the Indenture)
guarantee of the obligations of the Company under the Securities
and the Indenture incurred on the date of the Indenture (and any
related Exchange Securities issued pursuant to this Agreement) and
has provided an officer’s certificate to the Trustee stating
that the Company has complied with its obligations under Section
4.22 of the Indenture, this deadline shall be extended by 90
days;
(ii) as soon as 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) 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, 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 or the Guarantors
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 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 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 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) 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
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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 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 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:
(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;
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(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 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), 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, 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 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), 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
10
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 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 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 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;
11
(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 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 Guarantor 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) in the event any Registrable
Securities are exchangeable into certificated form pursuant to the
Indenture, 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;
12
(xiv) obtain 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) 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 make generally
available to its securityholders no 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), 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
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), 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 Company (at the
Company’s expense) all copies, other than permanent file
copies, of the prospectus covering such Registrable Securities in
such Electing Holder’s possession at the time of receipt of
such notice.
(f) In the event of a Shelf
Registration, in addition to the information required to be
provided by each Electing Holder in its Notice and Questionnaire,
the Company may require such Electing Holder to furnish to the
Company such additional information regarding such Electing Holder
and such Electing Holder’s intended method of distribution of
Registrable Securities as may be required in order to comply with
the Securities Act. Each such Electing Holder agrees to notify the
Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration
contains or would contain an untrue statement of a material fact
regarding such Electing Holder or such Electing Holder’s
intended method of disposition of such Registrable Securities or
omits to state any material fact regarding such Electing Holder or
such Electing Holder’s intended method of disposition of such
Registrable Securities required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Company
any additional information required to correct and update any
previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder
or the disposition of such Registrable Securities, 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.
13
(g) Until the expiration of one year
after the Closing Date, the Company will not, and will not permit
any of its “affiliates” (as defined in Rule 144) to,
resell any of the Securities that have been reacquired by any of
them except pursuant to an effective registration statement, or a
valid exemption from the registration requirements, under the
Securities Act.
(h) As a condition to its
participation in the Exchange Offer, each holder of Registrable
Securities shall furnish, upon the request of the Company, a
written representation to the Company (which may be contained in
the letter of transmittal or “agent’s message”
transmitted via The Depository Trust Company’s Automated
Tender Offer Procedures, in either case contemplated by the
Exchange Registration Statement) to the effect that (A) it is
not an “affiliate” of the Company, as defined in Rule
405 of the Securities Act, or if it is such an
“affiliate”, it will comply with the registration and
prospectus delivery requirements of the Securities Act to the
extent applicable, (B) it is not engaged in and does not
intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer, (C) it is
acquiring the Exchange Securities in its ordinary course of
business, (D) if it is a broker-dealer that holds Securities
that were acquired for its own account as a result of market-making
activities or other trading activities (other than Securities
acquired directly from the Company or any of its affiliates), it
will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange
Securities received by it in the Exchange Offer, (E) if it is
a broker-dealer, that it did not purchase the Securities to be
exchanged in the Exchange Offer from the Company or any of its
affiliates, and (F) it is not acting on behalf of any person
who could not truthfully and completely make the representations
contained in the foregoing subclauses (A) through
(E).
4. Registration Expenses
.
The Company agrees to bear and to
pay or cause to be paid promptly all expenses incident to the
Company’s performance of or compliance with this Agreement,
including (a) all Commission and any FINRA registration,
filing and review fees and expenses including reasonable fees and
disbursements of counsel for the Eligible Holders in connection
with such registration, filing and review, (b) all fees and
expenses in connection with the qualification of the Registrable
Securities and the Exchange Securities, as applicable, for offering
and sale under the State securities and blue sky laws referred to
in Section 3(d)(xii) and determination of their eligibility
for investment under the laws of such jurisdictions as the Electing
Holders may designate, including any reasonable fees and
disbursements of counsel for the Electing Holders in connection
with such qualification and determination, (c) all expenses
relating to the preparation, printing, production, distribution and
reproduction of each registration statement required to be filed
hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities or Exchange
Securities, as applicable, for delivery and the expenses of
printing or producing any selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the
offering, sale or delivery of Securities or Exchange Securities, as
applicable, to be disposed of (including certificates representing
the Securities or Exchange Securities, as applicable),
(d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities or Exchange Securities, as
applicable, and the preparation of documents referred in clause
(c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal
expenses (including all salaries and expenses of the
Company’s officers and employees performing legal or
accounting duties), (g) reasonable fees, disbursements and
expenses of counsel and independent certified public accountants of
the
14
Company, (h) reasonable fees, disbursements
and expenses of one counsel for the Electing Holders retained in
connection with a Shelf Registration, as selected by the Electing
Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by Electing Holders (which counsel
shall be reasonably satisfactory to the Company), (i) any fees
charged by securities rating services for rating the Registrable
Securities or the Exchange Securities, as applicable, and
(j) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection
with such registration (collectively, the “Registration
Expenses” ). To the extent that any Registration Expenses
are incurred, assumed or paid by any holder of Registrable
Securities, Securities or Exchange Securities, as applicable, the
Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after
receipt of a request therefor. Notwithstanding the foregoing, the
holders of the Registrable Securities being registered shall pay
all agency fees and commissions and underwriting discounts and
commissions, if any, and transfer taxes, if any, attributable to
the sale of such Registrable Securities and Exchange Securities, as
applicable, and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred
to above.
5. Representations and
Warranties .
Each of the Company and the
Guarantors, jointly and severally, represents and warrants to, and
agrees with, each Purchaser and each of the holders from time to
time of Registrable Securities that:
(a) Each registration statement
covering Registrable Securities, Securities or Exchange Securities,
as applicable, and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(d) and any further amendments
or supplements to any such registration statement or prospectus,
when it becomes effective or is filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and
will 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; and at all times
subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than
(A) from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to
Section 3(c)(iii)(G) or Section 3(d)(viii)(G) until
(ii) such time as the Company furnishes an amended or
supplemented prospectus pursuant to Section 3(c)(iv) or
Section 3(e) or (B) during any applicable Suspension
Period, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(c) or Section 3(d), as then amended
or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and
will 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 the light of the
circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by
reference in any prospectus referred to in Section 5(a), when
they become or became effective or are or were filed with the
Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such
15
documents will contain or contained
an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
a holder of Registrable Securities expressly for use
therein.
(c) The compliance by the Company
and the Guarantors with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of the
Guarantors is a party or by which the Company or any of the
Guarantors is bound or to which any of the property or assets of
the Company or any of the Guarantors is subject, (ii) result
in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws or other governing
documents, as applicable, of the Company or the Guarantors or
(iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Guarantors or
any of their respective properties, except in the case of
(i) and (iii) above, for such conflicts, breaches or
defaults as would not reasonably be expected to result in a
material adverse effect on the general affairs, management,
financial position, stockholders’ equity or results of
operations of the Company and the Guarantors, taken as whole (a
“Material Adverse Effect”); and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the
consummation by the Company and the Guarantors of the transactions
contemplated by this Agreement, except (w) the registration
under the Securities Act of the Registrable Securities and the
Exchange Securities, as applicable, and qualification of the
Indenture under the Trust Indenture Act, (x) such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or blue sky laws in connection
with the offering and distribution of the Registrable Securities
and the Exchange Securities, as applicable, (y) such consents,
approvals, authorizations, registrations or qualifications that
have been obtained and are in full force and effect as of the date
hereof and (z) such consents, approvals, authorizations,
registrations or qualifications that the failure to have would not
reasonably be expected to have a Material Adverse
Effect.
(d) This Agreement has been duly
authorized, executed and delivered by the Company and by the
Guarantors.
6. Indemnification and
Contribution .
(a) Indemnification by the
Company and the Guarantors. The Company and each of the
Guarantors, jointly and severally, will indemnify and hold harmless
each of the holders of Registrable Securities included in an
Exchange Registration Statement and each of the Electing Holders as
holders of Registrable Securities included in a Shelf Registration
Statement against any losses, claims, damages or liabilities, joint
or several, to which such holder or such Electing Holder may become
subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Exchange Registration Statement or any Shelf Registration
Statement, as the case may be, under which such Registrable
Securities or Exchange Securities were registered under the
Securities Act, or any preliminary, final or summary
prospectus
16
(including, without limitation, any
“issuer free writing prospectus” as defined in Rule
433) contained therein or furnished by the Company to any such
holder or any such Electing Holder, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each such holder and each such Electing Holder
for any and all legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that
neither the Company nor the Guarantors shall be liable to any such
person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final
or summary prospectus (including, without limitation, any
“issuer free writing prospectus” as defined in Rule
433), or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by
such person expressly for use therein.
(b) Indemnification by the
Electing Holders . The Company will require, as a condition to
inc
