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EXHIBIT 10.4 WARRANT AGREEMENT
THIS AGREEMENT, dated as of this 31st
day of December, 2008, by and between General Motors Corporation
(the " Borrower ") and the United States Department of the
Treasury (the " Lender ").
WHEREAS, the Borrower has entered
into a Loan and Security Agreement, dated as of the date hereof
(the " Loan and Security Agreement "), with the Lender
pursuant to which the Lender has agreed, subject to the terms and
conditions of such Loan and Security Agreement, to provide
financing to the Borrower; WHEREAS,
as additional consideration for the Lender to enter into the Loan
and Security Agreement, the Borrower has agreed to issue a warrant
to purchase common stock of the Borrower (the " Warrant ")
to the Lender in the form attached hereto as Exhibit A;
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Article I
Issuance of Warrants; Additional Note; Closing
1.1 Issuance . On the terms
and subject to the conditions set forth in this Agreement, the
Borrower agrees to issue to the Lender, on the Closing Date (as
hereinafter defined), the Warrant.
1.2 Number of Shares; Exercise
Price . The holder of the Warrant is entitled, upon the terms
and subject to the conditions set forth in the Warrant and
hereinafter set forth, to acquire from the Borrower, pursuant to
the Warrant, in whole or in part, after the receipt of all
applicable Regulatory Approvals (as defined in the Warrant), if
any, up to an aggregate of the number of fully paid and
nonassessable shares of the common stock of the Borrower (the "
Common Stock ") equal to 20% of the Maximum Loan Amount (as
defined in the Loan and Security Agreement) divided by the
15 day trailing average closing price per share of the Common
Stock on the New York Stock Exchange determined as of
December 2, 2008 (the " Exercise Price "); provided
that the number of shares of Common Stock issuable upon exercise of
the Warrant will be capped at 19.99% of the issued and outstanding
Common Stock of the Borrower as of the Closing Date, before giving
effect to the exercise of the Warrant (the " Warrant Limit
"). The number of shares of Common Stock issuable upon exercise of
the Warrant (the " Warrant Shares ") and the Exercise Price
are subject to adjustment as provided in the Warrant, and all
references to "Common Stock," "Warrant Shares" and "Exercise Price"
herein, shall be deemed to include any such adjustment or series of
adjustments.
1.3 Additional Note .
(a) In the event that the Warrant
Limit reduces the number of shares of Common Stock issuable to the
Lender, the Lender shall receive an additional note, substantially
in the form of Exhibit B hereto, dated the Closing Date,
payable to the Lender in a principal amount equal to 6.67% of the
Maximum Loan Amount less a sum equal to one-third of the number of
Warrant Shares times the Exercise Price per share, and otherwise
duly completed (" Additional Note "). The Lender shall have
the right to have the Additional Note subdivided, by exchange for
promissory notes of lesser denominations or otherwise.
(b) The Borrower shall repay in full
the aggregate amount outstanding on the Additional Note on
December 30, 2011 (the " Expiration Date "). The
Additional Note shall bear interest on the unpaid principal amount
thereof at a rate per annum equal to LIBOR plus 3.00%, payable in
arrears (i) on the last Business Day of each calendar quarter,
commencing with the first calendar quarter in 2009 (each an "
Interest Payment Date ") and (ii) on payment or
prepayment of the Additional Note, in whole or in part, provided
that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand. "
LIBOR " shall mean the greater of (a) 2.00% and
(b) the rate (adjusted for statutory reserve requirements for
eurocurrency liabilities) for eurodollar deposits for a period
equal to three months appearing on Reuters Screen LIBOR01 Page or
if such rate ceases to appear on Reuters Screen LIBOR01 Page, on
any other service providing comparable rate quotations at
approximately 11:00 a.m., London time. LIBOR shall be
determined on the Closing Date and reset on each Interest Payment
Date. (c) If all or a portion of this
Additional Note, any payment on this Additional Note or any other
amount payable hereunder shall not be paid when due, or if the
Borrower or its subsidiaries shall default under, or fail to
perform as required under, or shall otherwise materially breach the
terms of any instrument, agreement or contract for indebtedness
between the Borrower, on the one hand, and the Lender on the other
(provided, however, that the aggregate amount of all such
indebtedness exceeds $100,000,000), all accrued interest, principal
and other amounts owning hereunder shall immediately be due and
payable, and such amount shall bear interest at a rate equal to the
Post-Default Rate, in each case from the date of such non-payment
until such amount is paid in full. The " Post-Default Rate "
shall mean a rate per annum during the period from and including
the due date to but excluding the date on which such amount is paid
in full equal to 5.00% per annum, plus (a) the interest rate
otherwise applicable to the Additional Note, or (b) if no
interest rate is otherwise applicable, the sum of (i) LIBOR
plus (ii) 3.00%. (d) The
Additional Note is prepayable without premium or penalty, in whole
or in part on at any time, in accordance herewith and subject to
paragraph (e) below. Any amounts prepaid shall be applied
(i) first, to pay any indemnity obligations owed to the
Lender, (ii) second, to pay accrued and unpaid interest and
(iii) third, to repay the outstanding principal amount of the
Additional Note until paid in full. Amounts repaid may not be
reborrowed. If the Borrower intends to prepay the Additional Note
in whole or in part from any source, the Borrower shall give two
Business Days’ prior written
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notice thereof to the Lender. If such notice is given, the
amount specified in such notice shall be due and payable on the
date specified therein, together with accrued interest to such date
on the amount prepaid. (e) In
connection with each prepayment, other than on an Interest Payment
Date, the Borrower shall indemnify the Lender and hold the Lender
harmless from any actual loss or expense which the Lender may
sustain or incur arising from (i) the re-employment of funds
obtained by the Lender to maintain the Additional Note hereunder or
(ii) fees payable to terminate the deposits from which such
funds were obtained, in either case, which actual loss or expense
shall be equal to an amount equal to the excess, as reasonably
determined by the Lender, of (x) its cost of obtaining funds
for such Additional Note for the period from the date of such
payment through the next Interest Payment Date over (y) the
amount of interest likely to be realized by the Lender in
redeploying the funds not utilized by reason of such payment for
such period. This Section 1.3 shall survive termination of
this Warrant Agreement and any payment of the Additional Note.
1.4 Closing .
(a) On the terms and subject to the
conditions set forth in this Agreement, the closing of the issuance
of the Warrants (the " Closing ") will take place at the
location specified in Schedule A , at the time and on
the date set forth in Schedule A or as soon as
practicable thereafter, or at such other place, time and date as
shall be agreed between the Borrower and the Lender. The time and
date on which the Closing occurs is referred to in this Agreement
as the " Closing Date ". (b)
Subject to the fulfillment or waiver of the conditions to the
Closing in this Section 1.3, at the Closing the Borrower will
deliver the Warrant as evidenced by one or more certificates dated
the Closing Date and bearing appropriate legends as hereinafter
provided for, and, if applicable, the Additional Note, in
consideration for the Lender entering into the Loan and Security
Agreement. Article II
Representations and Warranties of the Borrower
2.1 The Warrant and Warrant
Shares . The Warrant has been duly authorized and, when
executed and delivered as contemplated hereby, will constitute a
valid and legally binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, except as the
same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and general
equitable principles, regardless of whether such enforceability is
considered in a proceeding at law or in equity (" Bankruptcy
Exceptions "). The Warrant Shares have been duly authorized and
reserved for issuance upon exercise of the Warrant and when so
issued in accordance with the terms of the Warrant will be validly
issued, fully paid and non-assessable.
2.2 Authorization,
Enforceability . (a) The Borrower
has the corporate power and authority to execute and deliver the
Warrant and to carry out its obligations thereunder (which includes
the
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issuance of the Warrant and Warrant Shares). The execution,
delivery and performance by the Borrower of the Warrant and the
consummation of the transactions contemplated thereby have been
duly authorized by all necessary corporate action on the part of
the Borrower and its stockholders, and no further approval or
authorization is required on the part of the Borrower. This
Agreement is a valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms,
subject to the Bankruptcy Exceptions.
(b) The execution, delivery and
performance by the Borrower of the Warrant and the consummation of
the transactions contemplated thereby and compliance by the
Borrower with the provisions thereof, will not, subject to
Section 4.4(a)(vi) hereof and except as set forth in
Schedule 2.2(b) hereto, (A) violate, conflict with, or
result in a breach of any provision of, or constitute a default (or
an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of
termination or acceleration of, or result in the creation of, any
lien, security interest, charge or encumbrance upon any of the
properties or assets of the Borrower or any Borrower Subsidiary
under any of the terms, conditions or provisions of (i) its
organizational documents or (ii) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which the Borrower or any Borrower
Subsidiary is a party or by which it or any Borrower Subsidiary may
be bound, or to which the Borrower or any Borrower Subsidiary or
any of the properties or assets of the Borrower or any Borrower
Subsidiary may be subject, or (B) subject to compliance with
the statutes and regulations referred to in the next paragraph,
violate any statute, rule or regulation or any judgment, ruling,
order, writ, injunction or decree applicable to the Borrower or any
Borrower Subsidiary or any of their respective properties or assets
except, in the case of clauses (A)(ii) and (B), for those
occurrences that, individually or in the aggregate, have not had
and would not reasonably be expected to have a Borrower Material
Adverse Effect. (c) Other than any
current report on Form 8-K required to be filed with the Securities
and Exchange Commission (the " SEC "), such filings and
approvals as are required to be made or obtained under any state
"blue sky" laws, and such as have been made or obtained, no notice
to, filing with, exemption or review by, or authorization, consent
or approval of, any Governmental Entity is required to be made or
obtained by the Borrower in connection with the issuance of the
Warrant or Warrant Shares except for any such notices, filings,
exemptions, reviews, authorizations, consents and approvals the
failure of which to make or obtain would not, individually or in
the aggregate, reasonably be expected to have a Borrower Material
Adverse Effect. The issuance of the Warrants and the Warrant Shares
does not require the approval of the stockholders of the Borrower.
2.3 Anti-takeover Provisions and
Rights Plan . The Board of Directors of the Borrower
(the " Board of Directors ") has taken all necessary action
to ensure that the transactions contemplated the Warrant and the
consummation of the transactions contemplated thereby, including
the exercise of the Warrant in accordance with its terms, will be
exempt from any anti-takeover or similar provisions of the
Borrower’s Certificate of Incorporation, and any other
provisions of any applicable "moratorium", "control share", "fair
price", "interested stockholder" or other anti-takeover laws and
regulations of any jurisdiction. The Borrower has taken all
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actions necessary to render any stockholders’ rights plan
of the Borrower inapplicable to the Warrant and the consummation of
the transactions contemplated thereby, including the exercise of
the Warrant by the Lender in accordance with its terms.
2.4 Offering of Securities
. Neither the Borrower nor any person acting on its behalf
has taken any action (including any offering of any securities of
the Borrower) under circumstances which would require the
integration of such offering with the offering of any of the
Warrants or Warrant Shares under the Securities Act of 1933, as
amended (" Securities Act "), and the rules and regulations
of the SEC promulgated thereunder, which might subject the
offering, issuance or sale of any of the Warrant or Warrant Shares
to Lender pursuant to this Agreement to the registration
requirements of the Securities Act. Article III
Covenants 3.1 Commercially
Reasonable Efforts . Subject to the terms and conditions of
this Agreement, each of the parties will use its commercially
reasonable efforts in good faith to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary,
proper or desirable, or advisable under applicable laws, so as to
permit consummation of the transactions contemplated by this
Agreement as promptly as practicable and otherwise to enable
consummation of the transactions contemplated hereby and shall use
commercially reasonable efforts to cooperate with the other party
to that end. 3.2 Expenses .
Unless otherwise provided in this Agreement or the Warrant, each of
the parties hereto will bear and pay all costs and expenses
incurred by it or on its behalf in connection with the transactions
contemplated under this Agreement and the Warrant, including fees
and expenses of its own financial or other consultants, investment
bankers, accountants and counsel. 3.3
Sufficiency of Authorized Common Stock; Exchange Listing
. During the period from the Closing Date until the date on
which the Warrant has been fully exercised, the Borrower shall at
all times have reserved for issuance, free of preemptive or similar
rights, a sufficient number of authorized and unissued Warrant
Shares to effectuate such exercise. Nothing in this
Section 3.3 shall preclude the Borrower from satisfying its
obligations in respect of the exercise of the Warrant by delivery
of shares of Common Stock which are held in the treasury of the
Borrower. As soon as reasonably practicable following the Closing,
the Borrower shall, at its expense, cause the Warrant Shares to be
listed on the same national securities exchange on which the Common
Stock is listed, subject to official notice of issuance, and shall
maintain such listing for so long as any Common Stock is listed on
such exchange. Article IV
Additional Agreements 4.1
Purchase for Investment . The Lender acknowledges
that the Warrant and the Warrant Shares have not been registered
under the Securities Act or under any state securities laws. The
Lender (a) is acquiring the Warrant pursuant to an exemption
from registration under the Securities Act solely for investment
with no present intention to distribute them to any person in
violation of the Securities Act or any applicable U.S. state
securities laws, (b) will not sell or otherwise dispose of the
Warrant or any of the Warrant Shares, except in compliance with
the
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registration requirements or exemption provisions of the
Securities Act and any applicable U.S. state securities laws, and
(c) has such knowledge and experience in financial and
business matters and in investments of this type that it is capable
of evaluating the merits and risks of the purchase and of making an
informed investment decision. 4.2
Legends . (a) (i) The
Lender agrees that all certificates or other instruments
representing the Warrant and the Warrant Shares will bear a legend
substantially to the following effect: "THE SECURITIES REPRESENTED
BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE
A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS."
(ii) The Lender agrees that all
certificates or other instruments representing the Warrant will
also bear a legend substantially to the following effect: "THIS
INSTRUMENT IS ISSUED SUBJECT TO THE PROVISIONS OF A WARRANT
AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR
REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH THE ISSUER."
(b) In the event that any Warrant
Shares (i) become registered under the Securities Act or
(ii) are eligible to be transferred without restriction in
accordance with Rule 144 or another exemption from
registration under the Securities Act (other than Rule 144A),
the Borrower shall issue new certificates or other instruments
representing such Warrant Shares, which shall not contain the
applicable legend in Section 4.2(a) above; provided that the
Lender surrenders to the Borrower the previously issued
certificates or other instruments. Upon Transfer of all or a
portion of the Warrant in compliance with Section 4.3 below,
the Borrower shall issue new certificates or other instruments
representing the Warrant, which shall contain the applicable
legends in Section 4.2(a) above; provided that the Lender
surrenders to the Borrower the previously issued certificates or
other instruments. 4.3 Transfer of
Warrant Shares; Restrictions on Exercise of the Warrant
. Subject to compliance with applicable securities laws, the
Lender shall be permitted to transfer, sell, assign or otherwise
dispose of (" Transfer ") all or a portion of the Warrant
Shares at any time, and the Borrower shall take all steps as may be
reasonably requested by the Lender to facilitate the Transfer of
the Warrant Shares. Notwithstanding anything to the contrary, as a
condition to the effectiveness of each Transfer of the Warrant (in
whole or in part), each Person to whom or which the Warrant is
Transferred shall have agreed in writing with the Borrower that the
Warrant shall remain subject to all rights provided under
Section 4.6.
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4.4 Registration Rights .
(a) Registration .
(i) Subject to the terms and
conditions of this Agreement, the Borrower covenants and agrees
that as promptly as practicable after the Closing Date (and in any
event no later than 30 days after the Closing Date), the
Borrower shall prepare and file with the SEC a Shelf Registration
Statement covering all Registrable Securities (as defined in
Section 4.4(k)) (or otherwise designate an existing Shelf
Registration Statement filed with the SEC to cover the Registrable
Securities), and, to the extent the Shelf Registration Statement
has not theretofore been declared effective or is not automatically
effective upon such filing, the Borrower shall use reasonable best
efforts to cause such Shelf Registration Statement to be declared
or become effective and to keep such Shelf Registration Statement
continuously effective and in compliance with the Securities Act
and usable for resale of such Registrable Securities for a period
from the date of its initial effectiveness until such time as there
are no Registrable Securities remaining (including by refiling such
Shelf Registration Statement (or a new Shelf Registration
Statement) if the initial Shelf Registration Statement expires). So
long as the Borrower is a well-known seasoned issuer (as defined in
Rule 405 under the Securities Act) at the time of filing of
the Shelf Registration Statement with the SEC, such Shelf
Registration Statement shall be designated by the Borrower as an
automatic Shelf Registration Statement.
(ii) Any registration pursuant to
Section 4.4(a)(i) shall be effected by means of a shelf
registration on an appropriate form under Rule 415 under the
Securities Act (as defined in Section 4.4(k)) (a " Shelf
Registration Statement "). If the Lender or any other Holder
intends to distribute any Registrable Securities by means of an
underwritten offering it shall promptly so advise the Borrower and
the Borrower shall take all reasonable steps to facilitate such
distribution, including the actions required pursuant to
Section 4.4(c); provided that the Borrower shall not be
required to facilitate an underwritten offering of Registrable
Securities unless the expected gross proceeds from such offering
exceed an amount equal to (i) 2% of the market value of the
Warrant if the market value of the Warrant on the date of issuance
is less than $2 billion and (ii) $200 million if the
market value of the Warrant on the date of issuance is equal to or
greater than $2 billion. For purposes of this
Section 4.4(a)(ii), "market value" per share of Common Stock
shall be the last reported sale price of the Common Stock on the
national securities exchange on which the Common Stock is listed or
admitted to trading on the last trading day prior to the proposed
transfer, and the "market value" for the Warrant (or any portion
thereof) shall be (A) the market value per share of Common
Stock into which the Warrant (or such portion thereof) is
exercisable less the exercise price per share, times (B) the
number of shares of Common Stock issuable upon exercise of the
Warrant (or such portion thereof). The lead underwriters in any
such distribution shall be selected by the Holders of a majority of
the Registrable Securities to be distributed; provided that to the
extent appropriate and permitted under applicable law, such Holders
shall
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consider the qualifications of any broker-dealer Affiliate of
the Borrower in selecting the lead underwriters in any such
distribution. (iii) The Borrower
shall not be required to effect a registration (including a resale
of Registrable Securities from an effective Shelf Registration
Statement) or an underwritten offering pursuant to
Section 4.4(a): (A) with respect to securities that are
not Registrable Securities; or (B) if the Borrower has
notified the Lender and all other Holders that in the good faith
judgment of the Board of Directors, it would be materially
detrimental to the Borrower or its securityholders for such
registration or underwritten offering to be effected at such time,
in which event the Borrower shall have the right to defer such
registration for a period of not more than 45 days after
receipt of the request of the Lender or any other Holder; provided
that such right to delay a registration or underwritten offering
shall be exercised by the Borrower (1) only if the Borrower
has generally exercised (or is concurrently exercising) similar
black-out rights against holders of similar securities that have
registration rights and (2) not more than three times in any
12-month period and not more than 90 days in the aggregate in
any 12-month period. (iv) If during
any period when an effective Shelf Registration Statement is not
available, the Borrower proposes to register any of its equity
securities, other than a registration pursuant to
Section 4.4(a)(i) or a Special Registration, and the
registration form to be filed may be used for the registration or
qualification for distribution of Registrable Securities, the
Borrower will give prompt written notice to the Lender and all
other Holders of its intention to effect such a registration (but
in no event less than ten days prior to the anticipated filing
date) and will include in such registration all Registrable
Securities with respect to which the Borrower has received written
requests for inclusion therein within ten business days after the
date of the Borrower’s notice (a " Piggyback
Registration "). Any such person that has made such a written
request may withdraw its Registrable Securities from such Piggyback
Registration by giving written notice to the Borrower and the
managing underwriter, if any, on or before the fifth business day
prior to the planned effective date of such Piggyback Registration.
The Borrower may terminate or withdraw any registration under this
Section 4.4(a)(iv) prior to the effectiveness of such
registration, whether or not Lender or any other Holders have
elected to include Registrable Securities in such registration.
(v) If the registration referred to
in Section 4.4(a)(iv) is proposed to be underwritten, the
Borrower will so advise Lender and all other Holders as a part of
the written notice given pursuant to Section 4.4(a)(iv). In
such event, the right of Lender and all other Holders to
registration pursuant to Section 4.4(a) will be conditioned
upon such persons’ participation in such underwriting and the
inclusion of such person’s Registrable Securities in the
underwriting if such securities are of the same class of securities
as the securities to be offered in the underwritten offering, and
each such person will (together with the Borrower and the other
persons distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
underwriter or
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underwriters selected for such underwriting by the Borrower;
provided that the Lender (as opposed to other Holders) shall not be
required to indemnify any person in connection with any
registration. If any participating person disapproves of the terms
of the underwriting, such person may elect to withdraw therefrom by
written notice to the Borrower, the managing underwriters and the
Lender (if the Lender is participating in the underwriting).
(vi) If either (x) the Borrower
grants "piggyback" registration rights to one or more third parties
to include their securities in an underwritten offering under the
Shelf Registration Statement pursuant to Section 4.4(a)(ii) or
(y) a Piggyback Registration under Section 4.4(a)(iv)
relates to an underwritten offering, and in either case the
managing underwriters advise the Borrower that in their reasonable
opinion the number of securities requested to be included in such
offering exceeds the number which can be sold without adversely
affecting the marketability of such offering (including an adverse
effect on the per share offering price), the Borrower will include
in such offering only such number of securities that in the
reasonable opinion of such managing underwriters can be sold
without adversely affecting the marketability of the offering
(including an adverse effect on the per share offering price),
which securities will be so included in the following order of
priority: (A) first, in the case of a Piggyback Registration under
Section 4.4(a)(iv), the securities the Borrower proposes to
sell, (B) then the Registrable Securities of the Lender and
all other Holders who have requested inclusion of Registrable
Securities pursuant to Section 4.4(a)(ii) or
Section 4.4(a)(iv), as applicable, pro rata on the basis of
the aggregate number of such securities or shares owned by each
such person and (C) lastly, any other securities of the
Borrower that have been requested to be so included, subject to the
terms of this Agreement; provided, however, that if the Borrower
has, prior to the Closing Date, entered into an agreement (or
committed to enter into an agreement, including as contemplated by
the Settlement Agreement) with respect to its securities that is
inconsistent with the order of priority contemplated hereby then it
shall apply the order of priority in such conflicting agreement to
the extent that it would otherwise result in a breach under such
agreement. (b) Expenses of
Registration . All Registration Expenses incurred in connection
with any registration, qualification or compliance hereunder shall
be borne by the Borrower. All Selling Expenses (as defined in
Section 4.4(k)) incurred in connection with any registrations
hereunder shall be borne by the holders of the securities so
registered pro rata on the basis of the aggregate offering or sale
price of the securities so registered.
(c) Obligations of the
Borrower . The Borrower shall use its reasonable best efforts,
for so long as there are Registrable Securities outstanding, to
take such actions as are under its control to not become an
ineligible issuer (as defined in Rule 405 under the Securities
Act) and to remain a well-known seasoned issuer (as defined in
Rule 405 under the Securities Act) if it has such status on
the Closing Date or becomes eligible for such status in the future.
In addition, whenever required to effect the registration of any
Registrable Securities or facilitate the distribution of
Registrable Securities pursuant to an
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effective Shelf Registration Statement, the Borrower shall, as
expeditiously as reasonably practicable:
(i) Prepare and file with the SEC a
prospectus supplement with respect to a proposed offering of
Registrable Securities pursuant to an effective registration
statement, subject to Section 4.4(d), keep such registration
statement effective and keep such prospectus supplement current
until the securities described therein are no longer Registrable
Securities. (ii) Prepare and file
with the SEC such amendments and supplements to the applicable
registration statement and the prospectus or prospectus supplement
used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
registration statement. (iii) Furnish
to the Holders and any underwriters such number of copies of the
applicable registration statement and each such amendment and
supplement thereto (including in each case all exhibits) and of a
prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the disposition
of Registrable Securities owned or to be distributed by them.
(iv) Use its reasonable best efforts
to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders or
any managing underwriter(s), to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and to take any other action which may be
reasonably necessary to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such
Holder; provided that the Borrower shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions. (v)
Notify each Holder of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which
the applicable prospectus, as then in effect, includes an untrue
statement of a material fact or omits 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.
(vi) Give written notice to the
Holders: (A) when any registration
statement filed pursuant to Section 4.4(a) or any amendment
thereto has been filed with the SEC (except for any amendment
effected by the filing of a document with the SEC pursuant to the
Securities Exchange Act of 1934, as amended (" Exchange Act
")) and when such registration statement or any post-effective
amendment thereto has become effective;
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(B) of any request by the SEC for
amendments or supplements to any registration statement or the
prospectus included therein or for additional information;
(C) of the issuance by the SEC of any
stop order suspending the effectiveness of any registration
statement or the initiation of any proceedings for that purpose;
(D) of the receipt by the Borrower or
its legal counsel of any notification with respect to the
suspension of the qualification of the Common Stock for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; &nb
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