Exhibit 4.2
$400,000,000 PRINCIPAL AMOUNT
Alexandria Real Estate
Equities, Inc.
3.70% Convertible Senior Notes due
2027
Registration Rights
Agreement
Dated
as of January 17,
2007
Registration Rights
Agreement
THIS REGISTRATION RIGHTS AGREEMENT
(the “ Agreement ”) is made and entered into as
of January 17, 2007, by and among Alexandria Real Estate Equities,
Inc., a Maryland corporation (the “ Company ”),
and Alexandria Real Estate Equities, L.P., a Delaware limited
partnership (the “ Guarantor ”), and UBS
Securities LLC, Citigroup Global Markets Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (collectively, the “
Initial Purchasers ”), pursuant to that certain
Purchase Agreement, dated January 10, 2007, (the “
Purchase Agreement ”), among the Company and the
Initial Purchasers.
In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement. The
terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement.
The Company and the Guarantor agree
with the Initial Purchasers (i) for their benefit as Initial
Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Covered
Securities (as defined herein) (each of the foregoing a “
Holder ” and, together, the “ Holders
”), as follows:
1.
Definitions . Capitalized terms used herein without
definition shall have the respective meanings set forth in the
Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:
(a)
“ Additional Filing Deadline Date ” has the
meaning set forth in Section 2(e) hereof.
(b)
“ additional interest ” has the meaning set
forth in Section 2(e) hereof.
(c)
“ Additional Interest Accrual Period ” has the
meaning set forth in Section 2(e) hereof.
(d)
“ Additional Interest Amount ” has the meaning
set forth in Section 2(e) hereof.
(e)
“ Additional Interest Payment Date ” means each
July 15 and January 15 of each year.
(f)
“ Affiliate ” means, with respect to any
specified person, an “affiliate,” as defined in Rule
144, of such person.
(g)
“ Amendment Effectiveness Deadline Date ” has
the meaning set forth in Section 2(d) hereof.
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(h)
“ Applicable Conversion Price ” per share of
Common Stock means, on a given date, one thousand dollars ($1,000)
divided by the Conversion Rate in effect as of such date or, if no
Securities are then outstanding, the Conversion Rate that would be
in effect as of such date were Securities then
outstanding.
(i)
“ Automatic Shelf Registration Statement ” has
the meaning ascribed to it in Rule 405.
(j)
“ Business Day ” means each day on which the New
York Stock Exchange is open for trading.
(k)
“ Claim ” has the meaning set forth in Section
9(o) hereof.
(l)
“ Common Stock ” means the shares of common
stock, $0.01 par value per share, of the Company and any other
shares of capital stock as may constitute “Common
Stock” for purposes of the Indenture, including the
Underlying Shares.
(m)
“ Conversion Rate ” has the meaning ascribed to
it in the Indenture.
(n)
“ Covered Security ” has the meaning set forth
in Section 1(ss) hereof.
(o)
“ Effectiveness Deadline Date ” has the meaning
set forth in Section 2(a) hereof.
(p)
“ Effectiveness Period ” means a period (subject
to extension pursuant to Section 3(k) hereof) that terminates when
there are no Registrable Securities outstanding.
(q)
“ Event ” has the meaning set forth in Section
2(e) hereof.
(r)
“ Event Date ” has the meaning set forth in
Section 2(e) hereof.
(s)
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
(t)
“ Filing Deadline Date ” has the meaning set
forth in Section 2(a) hereof.
(u)
“ Form S-1 ” means Form S-1 under the Securities
Act.
(v)
“ Form S-3 ” means Form S-3 under the Securities
Act.
(w)
“ Holder ” has the meaning set forth in the
preamble hereto.
(x)
“ Holder Information ” has the meaning set forth
in Section 6(b) hereof.
(y)
“ Indemnified Party ” has the meaning set forth
in Section 6(c) hereof.
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(z)
“ Indemnifying Party ” has the meaning set forth
in Section 6(c) hereof.
(aa)
“ Indenture ” means the Indenture, dated as of
the date hereof, among the Company, the Guarantor and the Trustee,
pursuant to which the Securities are being issued.
(bb)
“ Initial Purchasers ” has the meaning set forth
in the preamble hereto.
(cc)
“ Initial Shelf Registration Statement ” has the
meaning set forth in Section 2(a) hereof.
(dd)
“ Issue Date ” means the date
hereof.
(ee)
“ Managing Underwriters ” has the meaning set
forth in Section 8(a) hereof.
(ff)
“ Material Event ” has the meaning set forth in
Section 3(k) hereof.
(gg)
“ Maturity Date ” has the meaning ascribed to it
in the Indenture.
(hh)
“ NASD Rules ” has the meaning set forth in
Section 3(t) hereof.
(ii)
“ Notice and Questionnaire ” means a written
questionnaire containing substantially the information called for
by the ‘Selling Securityholder Notice and
Questionnaire’ attached as Annex A to the Offering Memorandum
of the Company, dated January 10, 2007, relating to the
Securities.
(jj)
“ Notice Holder ” means, on a given date, any
Holder that has delivered a Notice and Questionnaire to the Company
on or prior to such date, provided not all of such Holder’s
Registrable Securities that have been registered for resale
pursuant to a Notice and Questionnaire have been sold in accordance
with a Shelf Registration Statement.
(kk)
“ Option Repurchase Date ” has the meaning
ascribed to it in the Indenture.
(ll)
“ Proceeding ” has the meaning set forth in
Section 6(c) hereof.
(mm)
“ Prospectus ” means each prospectus relating to
any Shelf Registration Statement, including all supplements and
amendments to such prospectus, in each case in the form furnished
pursuant to this Agreement by the Company to Holders or filed by
the Company with the SEC pursuant to Rule 424 or as part of such
Shelf Registration Statement, as the case may be, and in each case
including all materials, if any, incorporated by reference or
deemed to be incorporated by reference in such
prospectus.
(nn)
“ Purchase Agreement ” has the meaning set forth
in the preamble hereof.
(oo)
“ Record Date ” means, (i) July 1, with respect
to an Additional Interest Payment Date that occurs on July 15, and
(ii) January 1, with respect to an Additional Interest Payment Date
that occurs on January 15.
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(pp)
“ Record Holder ” means, with respect to an
Additional Interest Payment Date relating to a Registrable Security
for which any Additional Interest Amount has accrued, a Notice
Holder that was the holder of record of such Registrable Security
at the close of business on the Record Date relating to such
Additional Interest Payment Date.
(qq)
“ Redemption ” has the meaning ascribed to it in
the Indenture.
(rr)
“ Redemption Date ” has the meaning ascribed to
it in the Indenture.
(ss)
“ Registrable Securities ” means the Underlying
Shares and any securities into or for which such Underlying Shares
have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split or similar event
(each of the foregoing, a “ Covered Security ”)
until, in the case of any such security, the earliest
of:
(i)
the date on which such security has been effectively registered
under the Securities Act and disposed of in accordance with the
Registration Statement relating thereto;
(ii)
the date on which such security may be resold without restriction
pursuant to Rule 144(k) or any successor provision thereto;
or
(iii)
the date on which such security has been publicly sold pursuant to
Rule 144 or any successor provision thereto.
(tt)
“ Registration Expenses ” has the meaning set
forth in Section 5 hereof.
(uu)
“ Registration Statement ” means each
registration statement, under the Securities Act, of the Company
that covers any of the Registrable Securities pursuant to this
Agreement, including amendments and supplements to such
registration statement and including all post-effective amendments
to, all exhibits of, and all materials incorporated by reference or
deemed to be incorporated by reference in, such registration
statement, amendment or supplement.
(vv)
“ Repurchase at Holder’s Option ” has the
meaning ascribed to it in the Indenture.
(ww)
“ Repurchase Date ” means the date of any
repurchase specified in the Indenture and not otherwise defined
herein.
(xx)
“ Repurchase Upon Fundamental Change ” has the
meaning ascribed to it in the Indenture.
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(yy)
“ Rule 144 ” means Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
(zz)
“ Rule 144A ” means Rule 144A under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
(aaa)
“ Rule 405 ” means Rule 405 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
(bbb)
“ Rule 415 ” means Rule 415 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
(ccc)
“ Rule 424 ” means Rule 424 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
(ddd)
“ Rule 430B ” means Rule 430B under the
Securities Act, as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the
SEC.
(eee)
“ Rule 456 ” means Rule 456 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
(fff)
“ Rule 457 ” means Rule 457 under the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
(ggg)
“ SEC ” means the Securities and Exchange
Commission.
(hhh)
“ Securities ” means the 3.70% Convertible
Senior Notes due 2027 of the Company to be purchased pursuant to
the Purchase Agreement.
(iii)
“ Securities Act ” means the Securities Act of
1933, as amended, and the rules and regulations promulgated by the
SEC thereunder.
(jjj)
“ Shelf Registration Statement ” means the
Initial Shelf Registration Statement and any Subsequent Shelf
Registration Statement.
(kkk)
“ Subsequent Shelf Registration Statement ” has
the meaning set forth in Section 2(b) hereof.
5
(lll)
“ Subsequent Shelf Registration Statement Effectiveness
Deadline Date ” has the meaning set forth in Section 2(d)
hereof.
(mmm)
“ Suspension Notice ” has the meaning set forth
in Section 3(k) hereof.
(nnn)
“ Suspension Period ” has the meaning set forth
in Section 3(k) hereof.
(ooo)
“ TIA ” means the Trust Indenture Act of 1939,
as amended.
(ppp)
“ Trustee ” means Wilmington Trust Company, the
trustee under the Indenture.
(qqq)
“ Underlying Shares ” means the shares of Common
Stock issuable upon conversion of the Securities or upon
Redemption, Repurchase at Holder’s Option or Repurchase Upon
Fundamental Change.
2.
Shelf Registration .
(a)
The Company shall prepare and file, or cause to be prepared and
filed, with the SEC, by the date (the “ Filing Deadline
Date ”) that is ninety (90) days after the Issue Date, a
Registration Statement (the “ Initial Shelf Registration
Statement ”) for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 registering the resale from
time to time by Holders thereof of all of the Registrable
Securities (or, if registration of Registrable Securities not held
by Notice Holders is not permitted by the rules and regulations of
the SEC, then registering the resale from time to time by Notice
Holders of their Registrable Securities). Subject to Section
8(a) hereof, the Initial Shelf Registration Statement shall provide
for the registration of such Registrable Securities for resale by
such Holders in accordance with any reasonable method of
distribution elected by the Holders. In no event shall the
Initial Shelf Registration Statement be filed with the SEC prior to
completion of the offering of the Securities contemplated by the
Purchase Agreement. The Company shall use its commercially
reasonable efforts to (i) if it is not a “well-known seasoned
issuer” on the Filing Deadline Date, cause the Initial Shelf
Registration Statement to become effective under the Securities Act
by the date (the “ Effectiveness Deadline Date
”) that is one hundred eighty (180) days after the Issue Date
and (ii) keep the Initial Shelf Registration Statement (and any
Subsequent Shelf Registration Statement) continuously effective
under the Securities Act until the earlier of (a) the date that is
thirty-five (35) trading days immediately following the Maturity
Date, and (b) the termination of the Effectiveness Period.
None of the Company, the Guarantor or any of their respective
securityholders (other than Holders of Registrable Securities)
shall have the right to include any securities of the Company or
the Guarantor in any Shelf Registration Statement (other than an
Automatic Shelf Registration Statement) other than Registrable
Securities. At the time the Initial Shelf Registration
Statement becomes effective under the Securities Act, each Holder
that became a Notice Holder on or prior to the 15th day before the
date of such effectiveness shall be named as a selling
securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of Registrable Securities in
accordance with applicable law.
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(b)
If, for any reason, at any time during the Effectiveness Period any
Shelf Registration Statement ceases to be effective under the
Securities Act, or ceases to be usable for the purposes
contemplated hereunder, the Company shall use its commercially
reasonable efforts to promptly cause such Shelf Registration
Statement to become effective under the Securities Act (including
obtaining the prompt withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement), and in any
event shall, within ten (10) Business Days of such cessation of
effectiveness, (i) amend such Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of any order
suspending the effectiveness of such Shelf Registration Statement
or (ii) file an additional Registration Statement (a “
Subsequent Shelf Registration Statement ”) for an
offering to be made on a delayed or continuous basis pursuant to
Rule 415 registering the resale from time to time by Holders
thereof of all securities that are Registrable Securities as of the
time of such filing (or, if registration of Registrable Securities
not held by Notice Holders is not permitted by the rules and
regulations of the SEC, then registering the resale from time to
time by Notice Holders of their securities that are Registrable
Securities as of the time of such filing). If a Subsequent
Shelf Registration Statement is filed, the Company shall use its
commercially reasonable efforts to (A) cause such Subsequent Shelf
Registration Statement to become effective under the Securities Act
as promptly as practicable after such filing, but in no event later
than the Subsequent Shelf Registration Statement Effectiveness
Deadline Date and (B) keep such Subsequent Shelf Registration
Statement (or another Subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness
Period. Subject to Section 8(a) hereof, each such Subsequent
Shelf Registration Statement, if any, shall provide for the
registration of such Registrable Securities for resale by such
Holders in accordance with any reasonable method of distribution
elected by the Holders.
(c)
The Company shall supplement and amend any Shelf Registration
Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act or
as reasonably requested by the Initial Purchasers or by the Trustee
on behalf of the Holders of the Registrable Securities covered by
such Shelf Registration Statement.
(d)
(i)
Each Holder of Registrable Securities agrees that, if such Holder
wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only
in accordance with this Section 2(d) and Section 3(k). Each
Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related
Prospectus agrees to deliver a completed and executed Notice and
Questionnaire to the Company prior to any attempted or actual
distribution of Registrable Securities under a Shelf Registration
Statement. If a Holder becomes a Notice Holder after the 15th
day before the date the Initial Shelf Registration Statement
becomes
7
effective under
the Securities Act, the Company shall, within the later of (x)
twenty (20) Business Days after such date or (y) twenty (20)
Business Days after the expiration of any Suspension Period that
either (I) is in effect when such Holder became a Notice Holder or
(II) is put into effect within five (5) Business Days after the
date such Holder became a Notice Holder, use its commercially
reasonable best efforts to
(A)
file with the SEC a supplement to the related Prospectus (or, if
required by law, a post-effective amendment to the Shelf
Registration Statement or a Subsequent Shelf Registration
Statement), and all other document(s), in each case as is required
so that such Notice Holder is named as a selling securityholder in
a Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Notice Holder to deliver a Prospectus to
purchasers of the Registrable Securities in accordance with
applicable law; provided , however , that, if a
post-effective amendment or a Subsequent Shelf Registration
Statement is required by the rules and regulations of the SEC in
order to permit resales by such Notice Holder, the Company shall
not be required to file more than one (1) post-effective amendment
or Subsequent Shelf Registration Statement for such purpose in any
ninety (90) day period;
(B)
if, pursuant to Section 2(d)(i)(A), the Company shall have filed a
post-effective amendment to the Shelf Registration Statement or
filed a Subsequent Shelf Registration Statement, cause such
post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, to become effective under the
Securities Act as promptly as practicable, but in any event by the
date (the “ Amendment Effectiveness Deadline Date
,” in the case of a post-effective amendment, and the “
Subsequent Shelf Registration Statement Effectiveness Deadline
Date ,” in the case of a Subsequent Shelf Registration
Statement) that is thirty (30) days after the date such
post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, is required by this Section 2(d) to
be filed with the SEC;
(C)
provide such Notice Holder a reasonable number of copies of any
documents filed pursuant to clause (A) above;
(D)
notify such Notice Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective
amendment or Subsequent Shelf Registration Statement filed pursuant
to clause (A) above;
(E)
if such Holder became a Notice Holder during a Suspension Period,
or a Suspension Period is put into effect within five (5) Business
Days after the date such Holder became a Notice Holder, so inform
such Notice Holder and shall take the actions set forth in clauses
(A), (B), (C) and (D) above within twenty (20) Business Days after
expiration of such Suspension Period in accordance with Section
3(k); and
8
(F)
if, under applicable law, the Company has more than one option as
to the type or manner of making any such filing, make, to the
extent that it reasonably deems appropriate, the required filing or
filings in the manner or of a type that is reasonably expected to
result in the earliest availability of a Prospectus for effecting
resales of Registrable Securities.
(ii)
Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder that is not
a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; provided ,
however , that any Holder that becomes a Notice Holder
(regardless of when such Holder became a Notice Holder) shall be
named as a selling securityholder in a Shelf Registration Statement
or related Prospectus in accordance with the requirements of this
Section 2(d) or Section 2(a), as applicable.
(e)
The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if:
(i)
the Initial Shelf Registration Statement has not been filed with
the SEC on or prior to the Filing Deadline Date;
(ii)
the Initial Shelf Registration Statement has not become effective
under the Securities Act on or prior to the Effectiveness Deadline
Date;
(iii)
either a supplement to a Prospectus, a post-effective amendment or
a Subsequent Shelf Registration Statement is required to be filed
with the SEC and fails to be filed with the SEC within the
prescribed period and in the manner set forth in Section 2(d) (the
date such filing is required to be made being an “
Additional Filing Deadline Date ”) or, in the case of
a post-effective amendment or a Subsequent Shelf Registration
Statement, such post-effective amendment or Subsequent Registration
Statement does not become effective under the Securities Act by the
Amendment Effectiveness Deadline Date or the Subsequent Shelf
Registration Statement Effectiveness Deadline Date, as the case may
be;
(iv)
the Initial Shelf Registration Statement or any Subsequent
Registration Statement is filed with the SEC and becomes effective
under the Securities Act but shall thereafter cease to be effective
(without being succeeded immediately by a new Registration
Statement that is filed and immediately becomes effective under the
Securities Act) or usable for the offer and sale of Registrable
Securities in the manner contemplated by this Agreement for a
period of time (including any Suspension Period) which shall exceed
forty five (45) days (or, if applicable, sixty (60) days) in the
aggregate during the prior ninety (90) day period, or ninety (90)
days (or, if applicable, one hundred twenty (120) days) in the
aggregate during the prior three hundred sixty (360) day period;
or
9
(v)
any Registration Statement or amendment thereto, at the time it
becomes effective under the Securities Act, or any Prospectus
relating thereto, at the time it is filed with the SEC or, if
later, at the time the Registration Statement to which such
Prospectus relates becomes effective under the Securities Act,
shall fail to name each Notice Holder as a selling securityholder
in such a manner as to permit such Notice Holder to sell its
Registrable Securities pursuant to such Registration Statement and
Prospectus in accordance with applicable law, which Notice Holder
was entitled, pursuant to the terms of this Agreement, to be so
named (it being understood that, without limitation, naming such
Notice Holder in a manner that permits such Notice Holder to sell
only a portion of such Notice Holder’s Registrable Securities
referenced in such Notice Holder’s Notice and Questionnaire
shall be deemed to be an “Event” (as defined below) for
purposes of this clause (v) with respect to that portion of
Registrable Securities that is not so permitted to be
sold).
Each of the events of a type
described in any of the foregoing clauses (i) through (v) are
individually referred to herein as an “ Event ,”
and
(V)
the Filing Deadline Date, in the case of clause (i)
above,
(W)
the Effectiveness Deadline Date, in the case of clause (ii)
above,
(X)
the Additional Filing Deadline Date, the Amendment Effectiveness
Deadline Date or the Subsequent Shelf Registration Statement
Effectiveness Deadline Date, as the case may be, in the case of
clause (iii) above,
(Y)
the date on which the duration of the ineffectiveness or
unusability of the Shelf Registration Statement exceeds the number
of days permitted by clause (iv) above, in the case of clause (iv)
above, and
(Z)
the date the applicable Registration Statement or amendment thereto
shall become effective under the Securities Act, or the date the
applicable Prospectus is filed with the SEC or, if later, the time
the Registration Statement to which such Prospectus relates becomes
effective under the Securities Act, as the case may be, in the case
of clause (v) above,
are each herein referred to as an
“ Event Date .” Events shall be deemed to
continue until the following dates with respect to the respective
types of Events:
(A)
the date the Initial Shelf Registration Statement is filed with the
SEC, in the case of an Event of the type described in clause (i)
above;
(B)
the date the Initial Shelf Registration Statement becomes effective
under the Securities Act, in the case of an Event of the type
described in clause (ii) above;
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(C)
the date a supplement to a Prospectus, a post-effective amendment
or a Subsequent Shelf Registration Statement, whichever is
required, is filed with the SEC (in the case of a supplement) or
becomes effective under the Securities Act (in the case of a
post-effective amendment or a Subsequent Shelf Registration
Statement), in the case of an Event of the type described in clause
(iii) above;
(D)
the date the Initial Shelf Registration Statement or the Subsequent
Shelf Registration Statement, as the case may be, becomes effective
and usable again, or the date another Subsequent Shelf Registration
Statement is filed with the SEC pursuant to Section 2(b) and
becomes effective, in the case of an Event of the type described in
clause (iv) above; or
(E)
the date a supplement to the Prospectus is filed with the SEC, or
the date a post-effective amendment to the Registration Statement
becomes effective under the Securities Act, or the date a
Subsequent Shelf Registration Statement becomes effective under the
Securities Act, which supplement, post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, names
as selling securityholders, in such a manner as to permit them to
sell their Registrable Securities pursuant to the Registration
Statement and Prospectus supplement in accordance with applicable
law, all Holders entitled as herein provided to be so named, in the
case of an Event of the type described in clause (v)
above.
Accordingly, commencing on (and
including) any Event Date and ending on (but excluding) the next
date on which there are no Events that have occurred and are
continuing (an “ Additional Interest Accrual Period
”), the Company agrees to pay, as additional interest
(“ additional interest ”) and not as a penalty,
an amount (the “ Additional Interest Amount ”)
at the rate described below, payable periodically on each
Additional Interest Payment Date to Record Holders, to the extent
of, for each such Additional Interest Payment Date, the unpaid
Additional Interest Amount that has accrued to (but excluding) such
Additional Interest Payment Date (or, if the Additional Interest
Accrual Period shall have ended prior to such Additional Interest
Payment Date, the day immediately after the last day of such
Additional Interest Accrual Period); provided ,
however , that any unpaid Additional Interest Amount that
has accrued with respect to any Security, or portion thereof,
called for Redemption on a Redemption Date, or purchased by the
Company pursuant to a Repurchase at Holder’s Option or
Repurchase Upon Fundamental Change on an Option Repurchase Date or
Repurchase Date, as the case may be, that is after the close of
business on the Record Date relating to such Additional Interest
Payment Date and before such Additional Interest Payment Date,
shall, in each case, be instead paid, on such Redemption Date,
Option Repurchase Date or Repurchase Date, as the case may be, to
the Holder who submitted such Security or portion thereof for
Redemption, Repurchase at Holder’s Option or Repurchase Upon
Fundamental Change, as the case may be.
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The Additional Interest Amount shall
accrue at a rate per annum equal to one quarter of one percent
(0.25%) to and including the ninety (90) days following the Event
Date, and thereafter at a rate per annum equal to one half of one
percent (0.50%) of the aggregate principal amount of the Securities
of which such Record Holders were holders of record at the close of
business on the applicable Record Date; provided ,
however , that:
(I)
no Additional Interest Amounts shall accrue as to any Security from
and after the earlier of (x) the date such Security is no longer a
Registrable Security, (y) the date, and to the extent, such
Security is converted into cash and, if applicable, shares of
Common Stock in accordance with the Indenture and (z) the
expiration of the Effectiveness Period;
(II)
only those Holders (or their subsequent transferees) failing to be
named as selling securityholders in the manner prescribed in
Section 2(e)(v) above shall be entitled to receive any Additional
Interest Amounts that have accrued solely with respect to an Event
of the type described in Section 2(e)(v) above (it being understood
that this clause (II) shall not impair any right of any Holder to
receive Additional Interest Amounts that have accrued with respect
to an Event other than an Event of the type described in Section
2(e)(v) above);
(III)
only those Holders (or their subsequent transferees) whose delivery
of a Notice and Questionnaire gave rise to the obligation of the
Company, pursuant to Section 2(d)(i), to file and, if applicable,
make effective under the Securities Act the supplement,
post-effective amendment or Subsequent Shelf Registration Statement
referred to in Section 2(e)(iii) above shall be entitled to receive
any Additional Interest Amounts that have accrued solely with
respect to an Event of the type described in Section 2(e)(iii)
above (it being understood that this clause (III) shall not impair
any right of any Holder to receive Additional Interest Amounts that
have accrued with respect to an Event other than an Event of the
type described in Section 2(e)(iii) above); and
(IV)
if a Security ceases to be outstanding during an Additional
Interest Accrual Period for which an Additional Interest Amount
would be payable with respect to such Security, then the Additional
Interest Amount payable hereunder with respect to such Security
shall be prorated on the basis of the number of full days such
Security is outstanding during such Additional Interest Accrual
Period.
Except as provided in the final
paragraph of this Section 2(e), (i) the rate of accrual of the
Additional Interest Amount with respect to any period shall not
exceed the rate provided for in this Section 2(e) notwithstanding
the occurrence of multiple concurrent Events and (ii) following the
cure of all Events requiring the payment by the Company of
Additional Interest Amounts to the Holders pursuant to this
Section, the accrual of Additional Interest Amounts shall cease
(without in any way limiting the effect of any subsequent Event
requiring the payment of Additional Interest Amounts by the
Company). All installments of additional interest shall be
paid by wire transfer of immediately available
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funds to the account specified by
the Notice Holder or, if no such account is specified, by mailing a
check to such Notice Holder’s address shown in the register
of the registrar for the Securities or for the Underlying Shares,
as the case may be; provided , however , that, with
respect to the Global Security, the Company may pay installments of
additional interest by wire transfer of immediately available funds
to the account of the Depositary or its nominee, as contemplated by
the Indenture.
In no event shall additional
interest accrue or be payable in respect of shares of Common Stock
issued upon conversion of Securities. In the event that
Securities are converted after an Event Date and during an
Additional Interest Accrual Period, the Company shall increase the
Conversion Rate by 3% for each $1,000 principal amount of
Securities so converted; provided , for the avoidance of
doubt, that if an Event Date occurs after a Holder has converted
its Securities into shares of Common Stock, such Holder will not be
entitled to any compensation with respect to such Common
Stock.
All of the Company’s
obligations set forth in this Section 2(e) that are outstanding
with respect to any Registrable Security at the time such
Registrable Security ceases to be a Registrable Security shall
survive until such time as all such obligations with respect to
such security have been satisfied in full (notwithstanding
termination of this Agreement pursuant to Section 9(n)).
The parties hereto agree that the
additional interest provided for in this Section 2(e) constitutes a
reasonable estimate of the damages in respect of the Securities
that may be incurred by Holders of the Securities by reason of an
Event relating to such Securities, including, without limitation,
the failure of a Shelf Registration Statement to be filed, become
effective under the Securities Act, amended or replaced to include
the names of all Notice Holders or available for effecting resales
of Registrable Securities in accordance with the provisions
hereof.
If any Additional Interest Amounts
are not paid when due, then, to the extent permitted by law, such
overdue Additional Interest Amounts, if any, shall bear interest,
compounded semi-annually, until paid at the rate of interest
payable with respect to overdue amounts on the Securities pursuant
to the terms of the Indenture.
(f)
The Trustee shall be entitled, on behalf of Holders, to seek any
available remedy for the enforcement of this Agreement, including
for the payment of any Additional Interest Amount.
3.
Registration Procedures . In connection with the
registration obligations of the Company under Section 2 hereof, the
Company shall:
(a)
Prepare and file with the SEC a Shelf Registration Statement or
Shelf Registration Statements in the manner provided in this
Agreement and use its commercially reasonable efforts to cause each
such Shelf Registration Statement to become effective under the
Securities Act and remain effective under the Securities Act as
provided herein; provided , that, before filing any Shelf
Registration Statement or
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Prospectus or any
amendments or supplements thereto with the SEC, the Company shall
furnish to the Initial Purchasers and counsel for the Holders and
for the Initial Purchasers (or, if applicable, separate counsel for
the Holders) copies of all such documents proposed to be filed and
reflect in each such document when so filed with the SEC such
comments as the Initial Purchasers or such counsel reasonably shall
propose within three (3) Business Days of the delivery of such
copies to the Initial Purchasers and such counsel. Each
Registration Statement that is or is required by this Agreement to
be filed with the SEC shall be filed on Form S-3 if the Company is
then eligible to use Form S-3 for the purposes contemplated by this
Agreement, or, if the Company is not then so eligible to use Form
S-3, shall be on Form S-1 or another appropriate form that is then
available to the Company for the purposes contemplated by this
Agreement. Each such Registration Statement that is filed on
Form S-3 shall constitute an Automatic Shelf Registration Statement
if the Company is then eligible to file an Automatic Shelf
Registration Statement on Form S-3 for the purposes contemplated by
this Agreement. If, at the time any Registration Statement is
filed with the SEC, the Company is eligible, pursuant to Rule
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