BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
$60,000,000 AGGREGATE PRINCIPAL AMOUNT
ANTHRACITE CAPITAL, INC.
11.75% CONVERTIBLE SENIOR NOTES
DUE 2027
RESALE REGISTRATION RIGHTS AGREEMENT
DATED AUGUST 29, 2007
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of August 29, 2007, between
Anthracite Capital, Inc., a Maryland corporation (together with any successor
entity, herein referred to as the "COMPANY"), and Banc of America Securities LLC
and Deutsche Bank Securities Inc., as the initial purchasers (the "INITIAL
PURCHASERS") under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of August 23, 2007, among the
Company, BlackRock Financial Management, Inc. (solely with respect to Section
1(b)) and the Initial Purchasers (the "PURCHASE AGREEMENT"), relating to the
initial placement (the "INITIAL PLACEMENT") of the Notes (as defined below), the
Initial Purchasers have agreed to purchase from the Company $60,000,000
($80,000,000 if the Initial Purchasers exercise their 13-day option to purchase
additional Notes in full) in aggregate principal amount of 11.75% Convertible
Senior Notes due 2027 (the "NOTES"). The Notes will be convertible, subject to
the terms thereof, into shares of common stock, par value $0.001 per share, of
the Company (the "COMMON STOCK"). To induce the Initial Purchasers to purchase
the Notes, the Company has agreed to provide the registration rights set forth
in this Agreement pursuant to Section 5(g) of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDMENT EFFECTIVENESS DEADLINE DATE": has the meaning set forth in
Section 2(f) hereof.
"BLUE SKY APPLICATION": has the meaning set forth in Section 6(a)(i)
hereof.
"BUSINESS DAY": has the meaning set forth in the Indenture.
"CLOSING DATE": The date of the first issuance of the Notes.
"COMMISSION": U.S. Securities and Exchange Commission.
"COMMON STOCK": has the meaning set forth in the preamble hereto.
"COMPANY": has the meaning set forth in the preamble hereto.
"EFFECTIVENESS DATE": has the meaning set forth in Section 2(a)(ii) hereof.
"EFFECTIVENESS PERIOD": has the meaning set forth in Section 2(a)(iii)
hereof.
"EFFECTIVENESS TARGET DATE": has the meaning set forth in Section 2(a)(ii)
hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"FINRA": Financial Industry Regulatory Authority, Inc. (successor to the
National Association of Securities Dealers, Inc.).
"FREE WRITING PROSPECTUS": A free writing prospectus, as defined in Rule
405 under the Securities Act.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
"INDEMNIFIED HOLDER": has the meaning set forth in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of August 29, 2007 between the Company
and Xxxxx Fargo Bank, N.A., as trustee (the "TRUSTEE"), pursuant to which the
Securities are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PLACEMENT": has the meaning set forth in the preamble hereto.
"INITIAL PURCHASERS": has the meaning set forth in the preamble hereto.
"ISSUER FREE WRITING PROSPECTUS": An issuer free writing prospectus, as
defined in Rule 433 under the Securities Act.
"LIQUIDATED DAMAGES": has the meaning set forth in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each September 1 and March 1, if
applicable.
"LOSSES": has the meaning set forth in Section 6(a) hereof.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Notes outstanding; provided that, for the purpose of this Agreement, a
holder of shares of Common Stock which constitute Transfer Restricted Securities
shall be deemed to hold an aggregate principal amount of the
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Notes (in addition to the principal amount of the Notes held by such holder)
equal to the quotient of (x) the number of such shares of Common Stock held by
such holder and (y) the conversion rate in effect at the time of their issuance
upon conversion of such holder's Notes as determined in accordance with the
Indenture.
"MANAGING UNDERWRITER": The investment banker or investment bankers and
manager or managers that administer an underwritten offering, if any, conducted
pursuant to Section 8 hereof.
"NOTES": has the meaning set forth in the preamble hereto.
"NOTICE AND QUESTIONNAIRE" means a written notice executed by the
respective Holder and delivered to the Company containing substantially the
information called for by the Selling Securityholder Notice and Questionnaire
attached as Appendix A to the Offering Memorandum of the Company relating to the
Notes.
"NOTICE HOLDER": On any date, any Holder of Transfer Restricted Securities
that has properly delivered a fully completed Notice and Questionnaire to the
Company on or prior to such date.
"PERMITTED FREE WRITING PROSPECTUS": has the meaning set forth in Section
9(a) hereof.
"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"PURCHASE AGREEMENT": has the meaning set forth in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
"RECORD HOLDER": With respect to any Liquidated Damages Payment Date, each
Person who is a registered holder of the Notes at the close of business on the
Business Day before the relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": has the meaning set forth in Section 3(a) hereof.
"REPRESENTATIVES": has the meaning set forth in the preamble hereto.
"SECURITIES ACT": Securities Act of 1933, as amended.
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"SHELF FILING DEADLINE": has the meaning set forth in Section 2(a)(i)
hereof.
"SHELF REGISTRATION STATEMENT": has the meaning set forth in Section
2(a)(i) hereof.
"SUSPENSION NOTICE": has the meaning set forth in Section 4(c) hereof.
"SUSPENSION PERIOD": has the meaning set forth in Section 4(b)(ii) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Note and each share of Common Stock
issued upon conversion of Notes until the earliest of:
(i) the date on which such Note or such share of Common Stock
issued upon conversion has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Note or such share of Common Stock
issued upon conversion is transferred in compliance with Rule 144 (or
any other similar provision then in force) under the Securities Act or
transferable pursuant to paragraph (k) of Rule 144 under the
Securities Act (or any other similar provision then in force);
(iii) the date on which such Note or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result
of redemption, repurchase and cancellation, conversion or otherwise);
or
(iv) the date on which such Note or such share of Common Stock
has otherwise been transferred and a new Note or share of Common Stock
not subject to transfer restrictions under the Securities Act has been
delivered by or on behalf of the Company in accordance with Section
2.06 of the Indenture.
"UNDERWRITER": Any underwriter of Transfer Restricted Securities in
connection with an offering thereof under the Shelf Registration Statement.
"UNDERWRITTEN REGISTRATION": A registration in which Transfer Restricted
Securities of the Company are sold to an underwriter for reoffering to the
public.
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Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) use its commercially reasonable efforts within 120 days after
the Closing Date) (the "SHELF FILING DEADLINE"), cause to be filed, or
otherwise designate an existing filing with the Commission as, a
registration statement pursuant to Rule 415 under the Securities Act
or any similar rule that may be adopted by the Commission (the "SHELF
REGISTRATION STATEMENT"), which Shelf Registration Statement shall
provide for the registration and resales, on a continuous or delayed
basis, of all Transfer Restricted Securities subject to the terms and
conditions hereof;
(ii) use commercially reasonable efforts to cause the Shelf
Registration Statement to become effective under the Securities Act,
or otherwise make available for use by Holders a previously filed
effective Shelf Registration Statement, not later than 210 days after
the date hereof (the "EFFECTIVENESS TARGET DATE", and the date of such
effectiveness or availability, the "EFFECTIVENESS DATE"); and
(iii) use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the Securities Act and by the provisions of
Section 4(b) hereof to the extent necessary to ensure that (A) it is
available for resales by the Holders of Transfer Restricted Securities
entitled, subject to the terms and conditions hereof, to the benefit
of this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the
Commission promulgated thereunder as announced from time to time, for
a period (the "EFFECTIVENESS PERIOD") from the date the Shelf
Registration Statement becomes effective until the date that the Notes
and the shares of Common Stock issuable upon exchange thereof have
ceased to be Transfer Restricted Securities.
(b) Not less than 30 days prior to the Effectiveness Target Date, the
Company shall mail the Notice and Questionnaire to the Holders. Each Holder
that becomes a Notice Holder (and provides such additional information as
the Company reasonably may request) no later than 15 days following the
earlier of such Xxxxxx's receipt of notice from the Company or the date
notice shall have been deemed given by the
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Company pursuant to Section 9(e) hereof of the filing or designation of the
Shelf Registration Statement shall be named as a selling securityholder in
the initial Registration Statement made available to Holders under the
Shelf Registration Statement.
(c) If the Shelf Registration Statement ceases to be effective for any
reason at any time during the Effectiveness Period (other than because all
Transfer Restricted Securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Transfer Restricted
Securities), the Company shall use commercially reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof or file or designate a subsequent Shelf Registration Statement
covering all of the securities that as of the date of such filing or
designation are Transfer Restricted Securities. If such a subsequent Shelf
Registration Statement is filed or designated (and is not already
effective), the Company shall use commercially reasonable efforts to cause
the subsequent Shelf Registration Statement to become effective as promptly
as is practicable after such filing or designation and to keep such
subsequent Shelf Registration Statement continuously effective until the
end of the Effectiveness Period.
(d) The Company shall use commercially reasonable efforts to
supplement and amend the 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 Transfer Restricted Securities
covered by such Shelf Registration Statement.
(e) The Company shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, and any Issuer Free Writing Prospectus, as of the date thereof,
(i) to comply in all material respects with the applicable requirements of
the Securities Act, and (ii) not to contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein (in the case
of the Prospectus and any Issuer Free Writing Prospectus, in light of the
circumstances under which they were made) not misleading.
(f) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with the terms and
conditions of this Agreement. Each Holder wishing to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus from and after the Effectiveness Date agrees to deliver
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a Notice and Questionnaire to the Company at least 10 Business Days prior
to any intended distribution of Transfer Restricted Securities under the
Shelf Registration Statement. From and after the Effectiveness Date, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered to it, and in any event upon the later of (x) 10
Business Days after such date or (y) 10 Business Days after the expiration
of any Suspension Period in effect when the Notice and Questionnaire is
delivered or put into effect within 10 Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Transfer Restricted
Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement,
use commercially reasonable efforts to cause such post-effective
amendment to become effective under the Securities Act as promptly as
is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is 45 days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder a copy of each document filed pursuant
to Section 2(f)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(f)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b); provided, however, that if a post-effective amendment to the Shelf
Registration Statement is required, the Company will not be obligated to file
more than one such amendment for all such Holders during any fiscal quarter
unless the principal amount of the Transfer Restricted Securities to be included
in such amendment is more than $5 million. Notwithstanding the preceding
sentence, the Company will not be obligated to file more than two such
supplements to the related Prospectus during any fiscal quarter. Notwithstanding
anything contained herein to the contrary, (i) the Company shall be under no
obligation to name any Holder that is
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not a Notice Holder as a selling securityholder in any Registration Statement or
related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be
extended by up to 10 Business Days from the Expiration of a Suspension Period
(and the Company shall incur no obligation to pay Liquidated Damages during such
extension) if such Suspension Period shall be in effect on the Amendment
Effectiveness Deadline Date.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed, or on file,
with the Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not become effective,
or a previously effective Shelf Registration Statement has not been
made available, prior to or on the Effectiveness Target Date;
(iii) the Company has failed to perform its obligations set forth
in Section 2(f) within the time periods required therein;
(iv) any post-effective amendment to a Shelf Registration filed
pursuant to Section 2(f)(i) has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline
Date;
(v) except as provided in Section 4(b)(ii) hereof, the Shelf
Registration Statement is filed and has become effective but, during
the Effectiveness Period, shall thereafter cease to be effective or
fail to be usable for its intended purpose for more than 10
consecutive Business Days; or
(vi) Suspension Periods (as defined below) exceed an aggregate of
90 days in any 360-day period;
(each such event referred to in foregoing clauses (i) through (vi), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay interest
("LIQUIDATED DAMAGES") with respect to the Transfer Restricted Securities
from and including the day following the Registration Default to but
excluding the earlier of (1) the day on which the Registration Default has
been cured and (2) the date the Shelf Registration Statement is no longer
required to be kept effective, accruing at a rate:
(A) in respect of the Notes, to each holder of Notes, (x)
with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing,
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equal to 0.25% per annum of the aggregate principal amount of the
Notes, and (y) with respect to the period commencing on the 91st
day following the day the Registration Default shall have
occurred and be continuing, equal to 0.50% per annum of the
aggregate principal amount of the Notes; provided that in no
event shall Liquidated Damages accrue at a rate per year
exceeding 0.50% of the aggregate principal amount of the Notes;
and
(B) in respect of the Notes that are Transfer Restricted
Securities submitted for conversion into Common Stock during the
existence of a Registration Default with respect to the Common
Stock, the holder will not be entitled to receive any Liquidated
Damages with respect to such Common Stock but (x) will be
entitled to a conversion rate adjustment in accordance with the
terms of the Notes as set forth in the Indenture and (y) will
receive from the Company on the settlement date with respect to
such conversion, accrued and unpaid Liquidated Damages calculated
in accordance with paragraph (A) to the Conversion Date (as
defined in the Indenture); and
(C) in respect of Common Stock issued upon conversion of
Notes, each holder of such Common Stock will not be entitled to
any Liquidated Damages if the Registration Default with respect
to such Common Stock occurs after the holder has converted the
Notes into Common Stock.
(b) All accrued Liquidated Damages shall be paid in arrears to Record
Holders by the Company on each Liquidated Damages Payment Date. Upon the
cure of all Registration Defaults relating to any particular Transfer
Restricted Security, the accrual of applicable Liquidated Damages will
cease.
All obligations of the Company set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use
commercially reasonable efforts to effect such registration to
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permit the sale of the Transfer Restricted Securities, and pursuant
thereto, shall as expeditiously as possible prepare and file with the
Commission a Shelf Registration Statement relating to the registration on
any appropriate form under the Securities Act, or otherwise make available
for use by Holders a previously filed Shelf Registration Statement.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iv)(D), use commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective during
the Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the Effectiveness Period, the Company shall file
promptly a post-effective amendment to the Shelf Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use commercially reasonable efforts to cause
any such amendment to become effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter;
(ii) Notwithstanding Section 4(b)(i) hereof, the Company may
suspend the effectiveness of the Shelf Registration Statement (each
such period, a "SUSPENSION PERIOD"):
(x) if an event occurs and is continuing as a result of
which the Shelf Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by reference
therein would, in the Company's judgment, 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
(y) if the Company determines in good faith that the
disclosure of a material event at such time may be detrimental to the
Company and its subsidiaries.
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Upon the occurrence of any event described in clauses (x) and (y) of
this Section 4(b)(ii), the Company shall give notice to the Holders
that the availability of the Shelf Registration is suspended and, upon
actual receipt of any such notice, each Holder agrees not to sell any
Transfer Restricted Securities pursuant to the Shelf Registration
until such Xxxxxx's receipt of copies of the supplemented or amended
Prospectus provided for in Section 4(b) hereof. The Suspension Period
shall not exceed an aggregate of 90 days in any 360-day period. The
Company shall not be required to specify in the written notice to the
Holders the nature of the event giving rise to the Suspension Period.
(iii) Prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement
as may be necessary to keep the Shelf Registration Statement
effective during the Effectiveness Period; cause the Prospectus
to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable
provisions of Rule 424 under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with
respect to the disposition of all Transfer Restricted Securities
covered by the Shelf Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth or to be set forth
in the Shelf Registration Statement or supplement to the
Prospectus;
(iv) Advise the selling Holders and any Initial Purchaser
that has provided in writing to the Company a telephone or
facsimile number and address for notices, promptly and, if
requested by such selling Holders, to confirm such advice in
writing (which notice pursuant to clauses (B) through (E) below
shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company shall have remedied the basis for
such suspension):
(A) when the Prospectus, any Prospectus supplement, any
post-effective amendment or any Issuer Free Writing
Prospectus has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus or for
additional information relating thereto,
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(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement under the Securities Act or of any notice that
would prevent its use, or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any
jurisdiction, or the threatening or initiation of any
proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of
any event, during the Effectiveness Period, that makes any
statement of a material fact made in the Shelf Registration
Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or
changes in the Shelf Registration Statement or the
Prospectus in order to make the statements therein (in the
case of the Prospectus, in the light of the circumstances
under which they were made) not misleading, or
(E) when any Issuer Free Writing Prospectus includes
information that may conflict with the information contained
in the Registration Statement.
(v) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement
or any notice that would prevent its use, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue
Sky laws, the Company shall use commercially reasonable efforts
to obtain the withdrawal or lifting of such order at the earliest
possible time, including, if necessary, by filing an amendment to
the Shelf Registration Statement or a new Shelf Registration
Statement and using commercially reasonable efforts to have such
amendment or new Shelf Registration Statement declared effective,
and will provide to each Holder who is named in the Shelf
Registration Statement prompt notice of the withdrawal of any
such order or of the filing or effectiveness of any such
amendment or new registration statement;
(vi) Make available at reasonable times for inspection by
one or more representatives of the selling Holders, designated in
writing by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement, and
any attorney or accountant retained by such selling Holders and
any
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underwriter participating in any disposition pursuant to the
Shelf Registration Statement, all financial and other records,
pertinent corporate documents and properties of the Company as
shall be reasonably necessary to enable them to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company's officers, directors,
managers and employees to supply all information reasonably
requested by any such representative or representatives of the
selling Holders, attorney or accountant in connection therewith;
(vii) If requested by any selling Holders or the
Representatives, promptly incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders may reasonably request to have included therein,
including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities;
(viii) Deliver to each selling Holder, without charge, as
many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto, and any
Issuer Free Writing Prospectus, as such Persons reasonably may
request; subject to Section 4(b)(ii) and subject to any notice by
the Company in accordance with this Section 4(b) of the existence
of any fact or event of the kind described in Section 4(b)(iv)(B)
through (E), the Company hereby consents to the use of such
Prospectus and any such amendment or supplement thereto, and any
such Issuer Free Writing Prospectus, by each of the selling
Holders in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(ix) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel
in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the selling
Holders may reasonably request and use its commercially
reasonable efforts to do any and all other acts or things
necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by
the Shelf Registration Statement; provided, however, that the
Company shall not be required (A) to register or qualify as a
foreign corporation or a dealer of securities where it is not now
so qualified or to take any action that would subject it to the
service of process in any jurisdiction where it is not now so
subject, other than service of process for suits arising out of
the
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Initial Placement or any offering pursuant to the Shelf
Registration Statement, or (B) to subject itself to general or
unlimited service of process or to taxation in any such
jurisdiction if they are not now so subject;
(x) Unless any Transfer Restricted Securities shall be in
book-entry form only, cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable
securities laws); and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the
Holders may request at least two Business Days before any sale of
Transfer Restricted Securities;
(xi) Use commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities;
(xii) Subject to Section 4(b)(ii) hereof, if any fact or
event contemplated by Section 4(b)(iv)(B) through (D) hereof
shall exist or have occurred, use commercially reasonable efforts
to prepare a supplement or post-effective amendment to the Shelf
Registration Statement, related Prospectus (including by means of
an Issuer Free Writing Prospectus), relevant Issuer Free Writing
Prospectus or any document incorporated therein by reference or
to file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities,
none of the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus will contain an untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein (in
the case of the Prospectus and any such Issuer Free Writing
Prospectus, in the light of the circumstances in which they are
made) not misleading;
(xiii) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the
Indenture with certificates for the Notes that are in a form
eligible for deposit with The Depository Trust Company;
(xiv) Cooperate and assist in any filings required to be
made with the FINRA and in the performance of any due diligence
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investigation by any underwriter that is required to be
undertaken in accordance with the rules and regulations of the
FINRA;
(xv) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission and
all reporting requirements under the rules and regulations of the
Exchange Act;
(xvi) Make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of
the Securities Act as soon as practicable after the effective
date of the Shelf Registration Statement and in any event no
later than 40 days after the end of the 12-month period (or 75
days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the
effective date of the Shelf Registration Statement;
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement (or the time when the registration as
to the Notes under the Shelf Registration Statement is required
to become effective hereunder), and, in connection therewith,
cooperate with the Trustee and the holders of Notes to effect
such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use commercially reasonable efforts to cause
the Trustee thereunder to execute all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture
to be so qualified in a timely manner. In the event that any such
amendment or modification referred to in this Section 4(b)(xvi)
involves 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;
(xviii) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may
be, on the primary securities exchange or automated quotation
system on which Common Stock is then listed or quoted;
(xix) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements
of Section 13 and Section 15 of the Exchange Act after the
effective date of the Shelf Registration Statement, unless such
document is available through the Commission's XXXXX system;
15
(xx) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, make such representations and
warranties to the Holders of Securities registered thereunder and
the underwriters, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set
forth in the Purchase Agreement;
(xxi) In connection with any underwritten offering conducted
pursuant to Section 8 hereof, obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
Managing Underwriters) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters;
(xxii) In connection with any underwritten offering
conducted pursuant to Section 8, hereof, obtain "comfort" letters
and updates thereof from the independent registered public
accountants of the Company (and, if necessary, any other
independent registered public accountants of any subsidiary of
the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to
be, included in the Shelf Registration Statement), addressed to
the underwriters, in customary form and covering matters of the
type customarily covered in "comfort" letters in connection with
primary underwritten offerings; and
(xxiii) In connection with any underwritten offering
conducted pursuant to Section 8 hereof, deliver such documents
and certificates as may be reasonably requested by the Majority
Holders and the Managing Underwriters, including those to
evidence compliance with Section 4(b)(iii) hereof and with any
customary conditions contained in the Purchase Agreement or other
agreement entered into by the Company.
(xxiv) In connection with underwritten offering conducted
pursuant to Section 8 hereof, the Company shall, if requested,
promptly include or incorporate in a Prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Managing Underwriters reasonably agree should
be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as
16
practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective
amendment.
(xxv) Use commercially reasonable efforts to take all other steps
necessary to effect the registration of the Transfer Restricted
Securities covered by the Shelf Registration Statement.
(xxvi) Enter into customary agreements (including, if requested,
an underwriting agreement in customary form) and take all other
appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities,
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 hereof.
The actions set forth in clauses (xx), (xxi), (xxii) and (xxiii) of this
Section 4(b) shall be performed at (A) the effectiveness of the Shelf
Registration Statement and each post-effective amendment thereto; and (b) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact of the kind described in Section
4(b)(iv)(B) through (E) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement and use of the Prospectus and any related Free
Writing Prospectuses until:
(i) such Holder has received copies of the supplemented or
amended Prospectus or applicable Issuer Free Writing Prospectus
contemplated by Section 4(b)(xi) hereof; or
(ii) such Xxxxxx is advised in writing by the Company that the
use of the Prospectus and any applicable Issuer Free Writing
Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities and any Issuer Free Writing Prospectus that was current at the time
of receipt of such Suspension Notice.
17
(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement, or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company
with a fully completed Notice and Questionnaire as required pursuant to
Section 2(b) or Section 2(f) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth
in the next sentence. The Company may require each Notice Holder of Notes
to be sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such
Notes as the Company may from time to time reasonably require for inclusion
in such Registration Statement. Each Notice Holder agrees promptly to
furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice
Holder and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably request in writing. Any sale of
any Transfer Restricted Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to
such Holder and its plan of distribution is as set forth in the Prospectus
delivered by such Holder in connection with such disposition, that such
Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its
plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such
Holder or its plan of distribution necessary to make the statements in such
Prospectus, in light of the circumstances under which they were made not
misleading. The Company may exclude from such Shelf Registration Statement
the Notes of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
5. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with this Agreement shall be borne by the Company regardless of whether a
Shelf Registration Statement becomes effective, including, without
limitation:
(a) all registration and filing fees and expenses (including filings
made with the FINRA);
(b) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws, if required;
18
(c) all expenses of printing (including printing of Prospectuses,
Issuer Free Writing Prospectuses and certificates for the Common Stock to
be issued upon conversion of the Notes) and the Company's expenses
for messenger and delivery services and telephone;
(d) all reasonable and documented fees and disbursements of counsel to
the Company;
(e) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements hereof;
and
(f) all fees and disbursements of independent registered public
accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company. The Company shall pay all expenses customarily borne by issuers in an
underwritten offering as set forth in Section 8(c) hereof.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities (including each Initial Purchaser), its
directors, officers, employees and agents, and each person, if any, who
controls any Holder within the meaning of the Securities Act or the
Exchange Act (each, an "INDEMNIFIED HOLDER"), against any loss, claim,
damage, liability or expense, as incurred, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
expense relating to resales of the Transfer Restricted Securities)
(collectively, "LOSSES"), to which such Indemnified Holder may become
subject, insofar as any such Loss arises out of or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement as
originally filed or in any amendment thereof, or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in such
blue sky application or other document or amendment or supplement)
filed in any jurisdiction specifically for the purpose of qualifying
any or all of the Transfer Restricted Securities under the securities
law of any state or other jurisdiction
19
(such application or document being hereinafter called a "BLUE SKY
APPLICATION"), or, in each case, the omission or alleged omission to
state therein any material fact required to be stated therein or
necessary to make the statements therein not misleading; or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact, in each case, necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and to reimburse each Indemnified Holder for any and all reasonable
expenses (including the fees and disbursements of counsel) as they are
incurred by such Indemnified Holder in connection with investigating,
defending, settling, compromising or paying any such Loss; provided,
however, that the foregoing indemnity agreement shall not apply to any Loss
to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Holder (or its related
Indemnified Holder) expressly for use therein (including, without
limitation, information within such Holder's Notice and Questionnaire). The
indemnity agreement set forth in this Section 6(a) shall be in addition to
any liabilities that the Company may otherwise have.
The Company also agrees to indemnify as provided in this Section 6(a)
or contribute as provided in Section 6(e) hereof to Losses of each
underwriter, if any, of Transfer Restricted Securities registered under a
Shelf Registration Statement, their directors, officers, employees or
agents and each person who controls such underwriter on substantially the
same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by
any Holder, enter into an underwriting agreement reflecting such agreement,
as provided in Section 4(b)(xxvi) hereof.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who
sign the Shelf Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act
(i) to the same extent as the foregoing indemnity from the Company to each
such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on
20
behalf of such Holder specifically for inclusion in the documents referred
to in the foregoing indemnity and (ii) against any Loss, joint or several,
including, but not limited to, any Loss relating to resales of the Transfer
Restricted Securities, to which such person may become subject, insofar as
any such Loss arises out of, or is based upon any Free Writing Prospectus
used by such Holder without the prior consent of the Issuer, and in
connection with any underwritten offering, the underwriters, provided that
the indemnification obligation in this clause (ii) shall be several, not
joint and several, among the Holders who used such Free Writing Prospectus.
This indemnity agreement set forth in this Section shall be in addition to
any liabilities which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof, but the failure to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to
the extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that a conflict may arise between the
positions of the indemnifying party and the indemnified party in conducting
the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of such
indemnifying party's election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the
21
indemnified party shall have employed separate counsel in accordance with
the proviso to the preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than
one separate counsel (other than local counsel), reasonably approved by the
indemnifying party, representing the indemnified parties who are parties to
such action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, in
each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) The indemnifying party under this Section 6 shall not be liable
for any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any Loss by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 6(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (x) includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding and
(y) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 6 is for any
reason unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any Loss referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable
by such indemnified party, as incurred, as a result of any Loss referred to
therein:
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and
22
the Holders, on the other hand, from the offering and sale of the
Transfer Restricted Securities, on the one hand, and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities, on the other hand, or
(ii) if the allocation provided by Section (6)(e)(i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section 6(e)(i)
above but also the relative fault of the Company, on the one hand, and
the Holders, on the other hand, in connection with the statements or
omissions or alleged statements or omissions that resulted in such
Loss, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, in connection with such offering and such sale
of the Transfer Restricted Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds
from the offering of the Notes purchased under the Purchase Agreement
(before deducting expenses) received by the Company and the total proceeds
received by the Holders with respect to their sale of Transfer Restricted
Securities. The relative fault of the Company, on the one hand, and the
Holders, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or the
Holders, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to timely correct or prevent such
statement or omission. The Company and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 6(e) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in this Section
6(e).
The amount paid or payable by a party as a result of the Loss referred
to above shall be deemed to include, subject to the limitations set forth
in Section 6(c), any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or
claim.
Notwithstanding the provisions of this Section 6, in no event will (i)
any Holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to
be received by such Holder from the sale of such Holder's Transfer
Restricted Securities (after deducting any fees, discounts and commissions
23
applicable thereto) pursuant to any Shelf Registration Statement under
which such Transfer Restricted Securities are to be registered under the
Securities Act and (ii) any underwriter be required to undertake liability
to any person hereunder for any amounts in excess of the discount or
commission payable to such underwriter with respect to the Transfer
Restricted Securities underwritten by it and distributed to the public. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute as provided in this Section 6(e) are
several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 6 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder, to such Holder of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities designated by such Holder, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15(d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
8. Underwritten Registrations.
(a) Any Holder of Transfer Restricted Securities who desires to do so
may sell Transfer Restricted Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least
33-1/3% in aggregate principal amount of the Transfer Restricted Securities
then covered by the Shelf Registration Statement shall request such an
offering and (ii) at least such aggregate principal amount of such Transfer
Restricted Securities shall be included in such offering (which shall be no
less than $15 million aggregate principal amount); and provided further
that the Company shall not be obligated to participate in more than one
underwritten offering during the Effectiveness Period. Upon receipt of such
a request, the Company shall provide all Holders of Transfer Restricted
Securities written notice of the request, which notice shall inform such
Holders that they have the opportunity to participate in the offering. If
any of the Transfer Restricted Securities covered by the Shelf
24
Registration Statement are to be sold in an underwritten offering, the
Managing Underwriters shall be selected by the Majority Holders.
(b) No person may participate in any underwritten offering pursuant to
the Shelf Registration Statement unless such person (i) agrees to sell such
person's Transfer Restricted Securities on the basis reasonably provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements; (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements; and (iii) if such Holder is not then a Notice Holder, such
Xxxxxx returns a completed and signed Notice and Questionnaire to the
Company in accordance with Section 2(b) or Section 2(f) hereof within a
reasonable amount of time before such underwritten offering.
(c) The Holders participating in any underwritten offering shall be
responsible for any underwriting discounts and commissions and fees and,
subject to Section 5 hereof, expenses of their own counsel. The Company
shall pay all expenses customarily borne by issuers in an underwritten
offering, including but not limited to filing fees, the fees and
disbursements of its counsel and independent public accountants and any
printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 4(b)(xxiv)
hereof, upon receipt of a request from the Managing Underwriter or a
representative of holders of a majority of the Transfer Restricted
Securities to be included in an underwritten offering to prepare and file
an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company may
delay the filing of any such amendment or supplement for up to 90 days if
the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
9. Miscellaneous.
(a) Free Writing Prospectuses. Each Holder represents that it has not
prepared or had prepared on its behalf or used or referred to, and agrees
that it will not prepare or have prepared on its behalf or use or refer to,
any Free Writing Prospectus, and has not distributed and will not
distribute any written materials in connection with the offer or sale of
the Transfer Restricted Securities without the prior express written
consent of the Company and, in connection with any underwritten offering,
the underwriters. Any such Free Writing Prospectus consented to by the
Company and, if applicable, the underwriters, as the case may be, is
hereinafter referred to as a "PERMITTED FREE WRITING PROSPECTUS." The
Company represents and agrees that it has treated and will treat, as the
25
case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, including in respect of timely filing with the
Commission, legending and recordkeeping.
(b) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to
this Agreement.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. In addition, the Company shall not
grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being
sold pursuant to a Shelf Registration Statement and does not directly or
indirectly adversely affect the rights of other Holders, may be given by
the Majority Holders, determined on the basis of Transfer Restricted
Securities being sold rather than registered under such Shelf Registration
Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
26
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement,
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Four Times Square
New York, New York 10036
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; four
Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if transmitted by facsimile; and on the
next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The
Company hereby agrees to extend the benefit of this Agreement to any Holder
and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts (including
by facsimile), each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
(h) Notes Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities
held by the Company or its Affiliates (other than subsequent Holders if
such subsequent Holders are deemed to be Affiliates solely by reason of
their holding of such Transfer Restricted Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
27
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(k) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ANTHRACITE CAPITAL, INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President and Chief Operating
Officer
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
Acting severally on behalf of themselves
and the several Initial Purchasers
By BANC OF AMERICA SECURITIES LLC
By /s/ Xxxxx X. XxXxxxxxx
-------------------------------------
Authorized Representative
By DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxxx Xxxxxx
-------------------------------------
Authorized Representative
By /s/ Xxxxx Xxxxxxx
-------------------------------------
Authorized Representative
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