REGISTRATION RIGHTS AGREEMENT By and Between WINGATE CAPITAL LTD. and E*TRADE FINANCIAL CORPORATION
Exhibit
4.1
EXECUTION
VERSION
By
and
Between
XXXXXXX
CAPITAL LTD.
and
E*TRADE
FINANCIAL CORPORATION
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Table
of Contents
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Page
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ARTICLE
I
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DEFINITIONS
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1
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Section
1.1.
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Certain
Defined Terms
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1
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Section
1.2.
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Terms
Generally
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4
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ARTICLE
II
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REGISTRATION
RIGHTS
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5
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Section
2.1.
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Shelf
Registration
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5
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Section
2.2.
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Demand
Registrations
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6
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Section
2.3.
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Piggyback
Registrations
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8
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Section
2.4.
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Lock-Up
Agreements; Restrictions on the Company
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9
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Section
2.5.
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Registration
Procedures
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9
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Section
2.6.
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Indemnification.
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15
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Section
2.7.
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Rule
144; Rule 144A
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17
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Section
2.8.
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Underwritten
Registrations
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18
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Section
2.9.
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Registration
Expenses
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18
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Section
2.10.
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Other
Agreements
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19
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Section
2.11.
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Securities
Held by the Company or its Subsidiaries
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19
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ARTICLE
III
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MISCELLANEOUS
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19
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Section
3.1.
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Conflicting
Agreements
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19
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Section
3.2.
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Termination
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19
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Section
3.3.
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Amendment
and Waiver
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19
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Section
3.4.
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Severability
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19
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Section
3.5.
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Entire
Agreement
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19
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Section
3.6.
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Successors
and Assigns
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20
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Section
3.7.
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Counterparts;
Execution by Facsimile Signature
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20
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Section
3.8.
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Remedies
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20
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Section
3.9.
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Notices
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20
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Section
3.10.
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Governing
Law; Consent to Jurisdiction
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21
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REGISTRATION
RIGHTS AGREEMENT dated as of November 29, 2007, by and between Xxxxxxx Capital
Ltd. (“Purchaser”) and E*TRADE Financial Corporation, a
Delaware corporation (the “Company”).
WHEREAS,
the Company and Purchaser have entered into a Master Investment and Securities
Purchase Agreement, dated as of November 29, 2007 (as amended, supplemented,
restated or otherwise modified from time to time, the “Investment
Agreement”), pursuant to and subject to the terms and conditions of
which, among other things, the Company has agreed to issue the Purchased Common
Stock (as such term is defined in the Investment Agreement) and the Springing
Lien Notes (as such term is defined in the Investment Agreement) (the
“Notes”);
and
WHEREAS,
pursuant to the Investment Agreement, the Company has agreed to provide to
Purchaser certain rights as set forth herein.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Certain Defined Terms. As
used herein, the following terms shall have the following meanings:
“Action”
means any legal, administrative, regulatory or other suit, action, claim, audit,
assessment, arbitration or other proceeding, investigation or
inquiry.
“Affiliate”
shall mean, with respect to any Person, any other Person which directly or
indirectly controls or is controlled by or is under common control with such
Person. As used in this definition, “control”(including its correlative
meanings, “controlled by” and “under common control with”) shall mean
possession, directly or indirectly, of power to direct or cause the direction
of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise). To the extent that
any
such term is used in relation to or in connection with any statute and the
definition of such term in such statute is broader or different, then, in such
context, such term shall have the meaning set forth in such
statute.
“Agreement”
means this Registration Rights Agreement as it may be amended, supplemented,
restated or modified from time to time.
“Beneficial
Ownership” by a Person of any securities includes ownership by any
Person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares (i) voting power which
includes the power to vote, or to direct the voting of, such security; and/or
(ii) investment power which includes the power to dispose, or to direct the
disposition, of such security; and shall otherwise be interpreted in accordance
with the term
“beneficial
ownership” as defined in Rule 13d-3 adopted by the SEC under the Exchange Act;
provided , that for purposes of determining Beneficial Ownership, in no
event will Purchaser be deemed to Beneficially Own any securities which it
has
the right to acquire pursuant to this Agreement unless, and then only to the
extent that, Purchaser shall have actually exercised such right. The term
“Beneficially Own” shall have a correlative
meaning.
“Business
Day” means any day, other than a Saturday, Sunday or a day on which
banking institutions in New York, New York are authorized or obligated to
close.
“Capital
Stock” means, with respect to any Person at any time, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited) or equivalent ownership interests in or issued by such
Person.
“Common
Stock” shall mean the shares of common stock, par
value $0.01 per share, of the Company.
“Covered
Securities” means any shares of Purchased Common Stock and any
Notes.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC from time to time
thereunder.
“Form
S-3” means such form under the Securities Act as
is in effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
“Governmental
Entity” shall mean any court, administrative agency or commission
or other governmental authority or instrumentality, whether federal, state,
local or foreign and any applicable industry self-regulatory
organization.
“Holders”
means Purchaser and any Transferee of Registrable Securities.
“Holders’
Representative” means Purchaser or any other Holder designated by
Purchaser as a Holders’ Representative.
“Indenture”
means the Indenture, dated as of November 29, 2007, between the Company and
The
Bank of New York, as trustee (the “Trustee”), pursuant to which the Notes are to
be issued, as such Indenture is amended, modified or supplemented from time
to
time in accordance with the terms thereof.
“Issuer
Free Writing Prospectus” means an issuer free writing prospectus,
as defined in Rule 433 under the Securities Act, relating to an offer of the
Registrable Securities.
“Law”
means any statute, law, code, ordinance, rule or regulation of any Governmental
Entity.
“Other
Securities” means shares of Capital Stock of the Company which are
contractually entitled to registration rights or which the Company is
registering pursuant to a registration statement covered by Section
2.3.
“Person”
means any individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivisions
thereof or any group (within the meaning of Section 13(d)(3) of the Exchange
Act) comprised of two or more of the foregoing.
“Prospectus”
means the prospectus included in any Registration Statement (including a
prospectus that discloses information previously omitted from a prospectus
filed
as part of an effective Registration Statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement, any Issuer
Free Writing Prospectus related thereto, and all other amendments and
supplements to such prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference
in
such prospectus.
“Registrable
Securities” means the Covered Securities and any securities which
may be issued or distributed in respect thereof by way of stock dividend or
stock split or other distribution, recapitalization or reclassification. As
to
any particular Registrable Securities, such Registrable Securities shall cease
to be Registrable Securities when (i) a registration statement with respect
to
the sale by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to
the
public in accordance with Rule 144 or they could be sold pursuant to Rule 144(k)
without volume limitation or other restrictions on transfer thereunder or (iii)
they shall have ceased to be outstanding.
“Registration
Statement” means any registration statement of the Company under
the Securities Act which permits the public offering of any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
“Rule
144” means Rule 144 under the Securities Act.
“SEC”
means the United States Securities and Exchange Commission.
“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC from time to time
thereunder.
“Selling
Holder” means each Holder of Registrable Securities included in a
registration pursuant to Article II.
“Shelf
Registration Statement” means a Registration Statement of the
Company filed with the SEC on either (a) Form S-3 (or any successor form or
other appropriate form under the Securities Act) or (b) if the Company is not
permitted to file a Registration Statement on Form S-
3,
an
evergreen Registration Statement on Form S-1 (or any successor form or other
appropriate form under the Securities Act), in each case for an offering to
be
made on a continuous or delayed basis pursuant to Rule 415 under the Securities
Act covering Registrable Securities. To the extent the Company is a well-known
seasoned issuer (as defined in Rule 405 under the Securities Act), a “Shelf
Registration Statement” shall be deemed to refer to an automatic shelf
registration statement (as defined in Rule 405 under the Securities Act) (an
“automatic shelf registration statement”) on Form
S-3.
“Subsidiary”
shall mean, with respect to any Person, any other Person of which 50% or more
of
the shares of the voting securities or other voting interests are owned or
controlled, or the ability to select or elect 50% or more of the directors
or
similar managers is held, directly or indirectly, by such first Person or one
or
more of its Subsidiaries, or by such first Person and one or more of its
Subsidiaries.
“TIA”
means the Trust Indenture Act of 1939, as in effect on the date the Indenture
is
qualified under that act.
“Transfer”
means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of, or to enter into any contract, option
or
other arrangement or understanding with respect to the sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar
disposition.
“Transferee”
means any of (i) the transferee of all or any portion of the Registrable
Securities held by Purchaser or (ii) the subsequent transferee of all or any
portion of the Registrable Securities held by any Transferee; provided,
that no Transferee shall be entitled to any benefits of a Transferee hereunder
unless such Transferee executes and delivers to the Company an instrument
substantially in the form provided as Exhibit A attached
hereto.
Section
1.2. Terms
Generally. The definitions in Section 1.1 shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine
and
neuter forms. The words “include”, “includes” and “including” shall be deemed to
be followed by the phrase “without limitation”, unless the context expressly
provides otherwise. All references herein to Sections, paragraphs,
subparagraphs, clauses, Exhibits or Schedules shall be deemed references to
Sections, paragraphs, subparagraphs or clauses of, or Exhibits or Schedules
to
this Agreement, unless the context requires otherwise. Unless otherwise
expressly defined, terms defined in this Agreement have the same meanings when
used in any Exhibit or Schedule hereto. Unless otherwise specified, the words
“this Agreement”, “herein”, “hereof”, “hereto” and “hereunder” and other words
of similar import refer to this Agreement as a whole (including the Schedules
and Exhibits) and not to any particular provision of this Agreement. The term
“or” is not exclusive. The word “extent” in the phrase “to the extent” shall
mean the degree to which a subject or other thing extends, and such phrase
shall
not mean simply “if”. Unless expressly stated otherwise, any Law defined or
referred to herein means such Law as from time to time amended, modified or
supplemented, including by succession of comparable successor Laws and
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the
meaning
or
interpretation of this Agreement.
ARTICLE
II
REGISTRATION
RIGHTS
Section
2.1.
Shelf Registration. Within 10 days following the filing by the
Company with the SEC of its Annual Report on Form 10-K for calendar year 2007,
the Company shall file with the SEC a Shelf Registration Statement relating
to
the offer and sale of all of the Registrable Securities by the Holders from
time
to time in accordance with the methods of distribution elected by such Holders
and set forth in the Shelf Registration Statement and shall use its reasonable
best efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act as promptly as practicable after the filing
thereof.
(a) The
Company shall use its reasonable best efforts to keep such Shelf Registration
Statement continuously effective under the Securities Act in order to permit
the
Prospectus forming a part thereof to be usable by Holders until the earlier
of
(i) the date as of which all Registrable Securities have been sold pursuant
to
the Shelf Registration Statement or another Registration Statement filed under
the Securities Act (but in no event prior to the applicable period referred
to
in Section 4(3) of the Securities Act and Rule 174 thereunder) and (ii) the
date
as of which each of the Holders is permitted to sell its Registrable Securities
without Registration pursuant to Rule 144(k) under the Securities Act without
volume limitation or other restrictions on transfer thereunder (such period
of
effectiveness, the “Shelf Period”). Subject to Section 2.1(c), the Company shall
not be deemed to have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the Shelf Period if the Company
voluntarily takes any action or omits to take any action that would result
in
Holders of Registrable Securities covered thereby not being able to offer and
sell any Registrable Securities pursuant to such Shelf Registration Statement
during the Shelf Period, unless such action or omission is required by
applicable Law. The Company shall use its commercially reasonable best efforts
to remain a well-known seasoned issuer (as defined in Rule 405 under the
Securities Act) and to not become an ineligible issuer (as defined in Rule
405
under the Securities Act) during the Shelf Period.
(b) The
Company shall be entitled to postpone (but not more than once in any 6-month
period), for a reasonable period of time not in excess of 60 days, the filing
or
initial effectiveness of, or suspend the use of, a Shelf Registration Statement
if the Company delivers to the Holders’ Representative a certificate signed by
both the Chief Executive Officer and Chief Financial Officer of the Company
certifying that, in the good faith judgment of the Board of Directors of the
Company, such registration, offering or use would reasonably be expected to
materially adversely affect or materially interfere with any bona fide material
financing of the Company or any material transaction under consideration by
the
Company or would require the disclosure of information that has not been, and
is
not otherwise required to be, disclosed to the public, the premature disclosure
of which would materially adversely affect the Company. Such certificate shall
contain, if requested by the Holders’ Representative (and subject to their
entering into a customary confidentiality obligation as to such information),
a
reasonably detailed statement of the reasons for such postponement or suspension
and an approximation of the anticipated delay.
(c) If
any of the Registrable Securities to be sold pursuant to a Shelf Registration
Statement are to be sold in a firm commitment underwritten offering, and the
managing underwriter(s) of such underwritten offering advise the Holders in
writing that it is their good faith opinion that the total number or dollar
amount of Registrable Securities proposed to be sold in such offering, together
with any Other Securities proposed to be included by holders thereof which
are
entitled to include securities in such Registration Statement, exceeds the
total
number or dollar amount of such securities that can be sold without having
an
adverse effect on the price, timing or distribution of the Registrable
Securities to be so included together with all such Other Securities, then
there
shall be included in such firm commitment underwritten offering the number
or
dollar amount of Registrable Securities and such Other Securities that in the
opinion of such managing underwriter(s) can be sold without so adversely
affecting such offering, and such number of Registrable Securities and Other
Securities shall be allocated for inclusion as follows:
(i) first,
the Registrable Securities for which inclusion in such underwritten offering
requested by the Holders, pro rata (if applicable), based on the number of
Registrable Securities Beneficially Owned by each such Holder; and
(ii) second,
among any holders of Other Securities, pro rata, based on the number of Other
Securities Beneficially Owned by each such holder of Other
Securities.
(d) The
Holders’ Representative shall have the right to notify the Company that it has
determined that the Shelf Registration Statement be abandoned or withdrawn,
in
which event the Company shall promptly abandon or withdraw such Shelf
Registration Statementand the Holders’ Representative shall promptly reimburse
the Company for all Registration Expenses incurred by the Company in connection
with such abandoned or withdrawn registration statement.
Section
2.2.
Demand Registrations. (a) If, following the six (6) month
anniversary of the date hereof, the Company is unable to file, cause to be
effective or maintain the effectiveness of a Shelf Registration Statement as
required under Section 2.1, the Holders’ Representative shall have the right by
delivering a written notice to the Company (a “Demand
Notice”) to require the Company to, pursuant to the terms of this
Agreement, register under and in accordance with the provisions of the
Securities Act the number of Registrable Securities Beneficially Owned by any
Holders and requested by such Demand Notice to be so registered (a
“Demand Registration”); provided, however,
that a Demand Notice may only be made if the sale of the Registrable Securities
requested to be registered in a Demand Notice is reasonably expected to result
in aggregate gross cash proceeds in excess of $50,000,000 (without regard to
any
underwriting discount or commission). A Demand Notice shall also specify the
expected method or methods of disposition of the applicable Registrable
Securities. Following receipt of a Demand Notice, the Company shall use its
reasonable best efforts to file, as promptly as reasonably practicable, but
not
later than 60days
after receipt by the Company of such Demand Notice (subject to paragraph (e)
of
this Section 2.2), a Registration Statement relating to the offer and sale
of
the Registrable Securities requested to be included therein by the Holders
thereof in accordance with the methods of distribution elected by such Holders
(a “Demand Registration Statement”) and shall use
its reasonable best efforts to cause such Registration Statement to be declared
effective under the Securities Act as promptly as practicable after the filing
thereof.
(b) If
any of the Registrable Securities to be registered pursuant to a Demand
Registration are to be sold in a firm commitment underwritten offering, and
the
managing underwriter(s) of such underwritten offering advise the Holders in
writing that it is their good faith opinion that the total number or dollar
amount of Registrable Securities proposed to be sold in such offering, together
with any Other Securities proposed to be included by holders thereof which
are
entitled to include securities in such Registration Statement, exceeds the
total
number or dollar amount of such securities that can be sold without having
an
adverse effect on the price, timing or distribution of the Registrable
Securities to be so included together with all such Other Securities, then
there
shall be included in such firm commitment underwritten offering the number
or
dollar amount of Registrable Securities and such Other Securities that in the
opinion of such managing underwriter(s) can be sold without so adversely
affecting such offering, and such number of Registrable Securities and Other
Securities shall be allocated for inclusion as follows:
(i) first,
among the Holders of the Registrable Securities set forth in the Demand Notice,
pro rata (if applicable), based on the number of Registrable Securities
Beneficially Owned by each such Holder;
(ii) second,
among the Holders of Registrable Securities exercising piggyback registration
rights under Section 2.3 with respect to such Demand Registration;
and
(iii) third,
among any holders of Other Securities, pro rata, based on the number of Other
Securities Beneficially Owned by each such holder of Other
Securities.
(c) In
the event of a Demand Registration, the Company shall be required to maintain
the continuous effectiveness of the applicable Registration Statement for a
period of at least 180 days after the effective date thereof or such shorter
period in which all Registrable Securities included in such Registration
Statement have actually been sold.
(d) The
Company shall be obligated to effect only two (2) Demand Registrations pursuant
to this Section 2.2; provided, however, in case the Company shall
receive from the Holders’ Representative a Demand Notice requesting that the
Company effect a registration on Form S-3 (provided that the Company is eligible
to effect such registration on Form S-3 at such time), the Company shall be
obligated to effect any such Demand Registration without regard to the number
of
Demand Registrations made.
(e) The
Company shall be entitled to postpone (but not more than once in any 6-month
period), for a reasonable period of time not in excess of 60 days, the filing
or
initial effectiveness of, or suspend the use of, a Demand Registration Statement
if the Company delivers to the Holders’ Representative a certificate signed by
both the Chief Executive Officer and Chief Financial Officer of the Company
certifying that, in the good faith judgment of the Board of Directors of the
Company, such registration, offering or use would reasonably be expected to
materially adversely affect or materially interfere with any bona fide material
financing of the Company or any material transaction under consideration by
the
Company or would require the disclosure of information that has not been, and
is
not otherwise required to be, disclosed to the public, the premature disclosure
of which would materially adversely affect the Company. Such
certificate shall contain, if requested by the Holders’ Representative (and
subject
to
their entering into a customary confidentiality obligation as to such
information), a statement of the reasons for such postponement or suspension
and
an approximation of the anticipated delay.
(f) The
Holders’ Representative shall have the right to notify the Company that it has
determined that the Registration Statement relating to a Demand Registration
be
abandoned or withdrawn, in which event the Company shall promptly abandon or
withdraw such Registration Statementand the Holders’ Representative shall
promptly reimburse the Company for all Registration Expenses incurred by the
Company in connection with such abandoned or withdrawn registration
statement.
Section
2.3. Piggyback
Registrations. (a) If, other than pursuant to Section 2.1, the
Company proposes or is required to file a registration statement under
the
Securities Act with respect to an offering of Common Stock, any other of
its
equity securities or securities convertible into or exchangeable or exercisable
for any of its equity securities, whether or not for sale for its own account
(other than a registration statement (i) on Form X-0, Xxxx X-0 or any successor
forms thereto or (ii) filed solely in connection with any employee benefit
or
dividend reinvestment plan), then the Company shall give prompt written
notice
of such proposed filing at least 30 days before the anticipated filing
date (the
“Piggyback Notice”) to the Holders. The Piggyback Notice
shall offer the Holders the opportunity to include in such registration
statement the number of Registrable Securities (for purposes of this Section
2.3, “Registrable Securities” shall be deemed to mean solely securities of
the same type as those proposed to be offered by the Company for its own
account) as they may request (a
“PiggybackRegistration”).
Subject to Section 2.3(b) hereof, the Company shall include in each such
Piggyback Registration all Registrable Securities with respect to which
the
Company has received written requests for inclusion therein within 15 days
after
notice has been given to the Holders. The Holders shall be permitted to
withdraw
all or part of the Registrable Securities from a Piggyback Registration
at any
time at least 2 Business Days prior to the effective date of the Registration
Statement relating to such Piggyback Registration. The Company shall be
required
to maintain the effectiveness of the Registration Statement for a Piggyback
Registration for a period of 180 days after the effective date thereof
or such
shorter period in which all Registrable Securities included in such Registration
Statement have actually been sold. If the Company shall
determine for any reason not to proceed with the registration that is the
subject of the Piggyback Notice, the Company shall give notice to the Holders
and thereupon shall be relieved of its obligation to register any Registrable
Securities in connection with the Piggyback Registration relating to such
registration, but shall not be relieved of its obligation for Registration
Expenses with respect to such registration.
(b) If
any of the securities to be registered pursuant to the registration giving
rise
to the Holders’ rights under this Section 2.3 are to be sold in an underwritten
offering, the Holders shall be permitted to include all Registrable Securities
requested to be included in such registration in such offering on the same
terms
and conditions as any other shares of Capital Stock, if any, of the Company
included therein; provided, however, that if such offering
involves a firm commitment underwritten offering and the managing underwriter(s)
of such underwritten offering advise the Company in writing that it is their
good faith opinion that the total amount of Registrable Securities requested
to
be so included, together with all Other Securities that the Company and any
other Persons having rights to participate in such registration intend to
include
in
such
offering, exceeds the total number or dollar amount of such securities that
can
be sold without having an adverse effect on the price, timing or distribution
of
the Registrable Securities to be so included together with all Other Securities,
then there shall be included in such firm commitment underwritten offering
the
number or dollar amount of Registrable Securities and such Other Securities
that
in the opinion of such managing underwriter(s) can be sold without so adversely
affecting such offering, and such number of Registrable Securities and Other
Securities shall be allocated for inclusion as follows:
(i) first,
all Other Securities being sold by the Company;
(ii) second,
all Registrable Securities requested to be included by the Holders, pro rata
(if
applicable), based on the number of Registrable Securities Beneficially Owned
by
each such Holder; and
(iii)
third, among any other holders of Other Securities requesting such registration,
pro rata, based on the number of Other Securities Beneficially Owned by each
such holder of Other Securities.
Section
2.4. Lock-Up
Agreements; Restrictions on the Company. ( a) Each Holder agrees,
in connection with any underwritten offering made pursuant to a Registration
Statement filed pursuant to this Article II in which such Holder has elected
to
include Registrable Securities, or which underwritten offering is being effected
by the Company for its own account, if requested (pursuant to a written notice)
by the managing underwriter(s) not to effect any public sale or distribution
of
any common equity securities of the Company (or securities convertible into
or
exchangeable or exercisable for such common equity securities) (except as
part
of such underwritten offering) during the period commencing 7 days prior
to and
continuing for not more than 90 days (or such shorter period as the managing
underwriter(s) may permit) after the date of the Prospectus (or Prospectus
supplement if the offering is made pursuant to a “shelf” registration) pursuant
to which such underwritten offering shall be made; provided, that the
Holders shall only be so bound so long as and to the extent that any other
stockholder having registration rights with respect to the securities of
the
Company is similarly bound.
(b) In
connection with any underwritten offering made pursuant to a Registration
Statement filed pursuant to this Article II, the Company will not effect
any
public sale or distribution of any common equity securities of the Company
(or
securities convertible into or exchangeable or exercisable for such common
equity securities) for its own account (other than (x) a registration statement
(i) on Form X-0, Xxxx X-0 or any successor forms thereto or (ii) filed solely
in
connection with an exchange offer or any employee benefit or dividend
reinvestment plan or (y) pursuant to such underwritten offering), during
the
period commencing 7 days prior to and continuing for not more than 90 days
(or
such shorter period as the managing underwriter(s) may permit) after the
date of
the Prospectus (or Prospectus supplement if the offering is made pursuant
to a
“shelf” registration) pursuant to which such underwritten offering shall be
made.
Section
2.5. Registration
Procedures. If and whenever the Company is required to use its
reasonable best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Article II, the Company shall effect
such registration to permit the
sale
of
such Registrable Securities in accordance with the intended method or methods
of
disposition thereof, and pursuant thereto the Company shall cooperate in
the
sale of the securities and shall, as expeditiously as possible:
(a) Prepare
and file with the SEC a Registration Statement or Registration Statements
on
such form which shall be available for the sale of the Registrable Securities
by
the Holders or the Company in accordance with the intended method or methods
of
distribution thereof, and use its reasonable best efforts to cause such
Registration Statement to become effective and to remain effective as provided
herein; provided, however, that before filing a Registration
Statement or Prospectus (including any Issuer Free Writing Prospectus related
thereto) or any amendments or supplements thereto (including documents that
would be incorporated or deemed to be incorporated therein by reference),
the
Company shall furnish or otherwise make available to the Selling Holders,
their
counsel and the managing underwriter(s), if any, copies of all such documents
proposed to be filed, which documents will be subject to the reasonable review
and comment of such counsel, and such other documents reasonably requested
by
such counsel, including any comment letter from the SEC, and, if requested
by
such counsel, provide such counsel reasonable opportunity to participate
in the
preparation of such Registration Statement and each Prospectus included therein
(including any Issuer Free Writing Prospectus related thereto) and such other
opportunities to conduct a reasonable investigation within the meaning of
the
Securities Act, including reasonable access to the Company’s books and records,
officers, accountants and other advisors. The Company shall not file any
such
Registration Statement or Prospectus (including any Issuer Free Writing
Prospectus related thereto) or any amendments or supplements thereto (including
such documents that, upon filing, would be incorporated or deemed to be
incorporated by reference therein) with respect to any registration pursuant
to
Section 2.1 or 2.2 to which the Holders’ Representative, its counsel, or the
managing underwriter(s), if any, shall reasonably object, in writing, on
a
timely basis, unless, in the opinion of the Company, such filing is necessary
to
comply with applicable Law.
(b) Prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective during the period provided herein and comply in all
material respects with the provisions of the Securities Act with respect
to the
disposition of all securities covered by such Registration Statement, and
cause
the related Prospectus to be supplemented by any Prospectus supplement or
Issuer
Free Writing Prospectus as may be necessary to comply with the provisions
of the
Securities Act with respect to the disposition of the securities coveredby
such
Registration Statement, and as so supplemented to be filed pursuant to Rule
424
(or any similar provisions then in force) under the Securities Act.
(c) Notify
each Selling Holder and the managing underwriter(s), if any, promptly, and
(if
requested by any such Person) confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement, Issuer Free Writing Prospectus or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other Governmental Entity for amendments
or supplements to a Registration Statement or related Prospectus or Issuer
Free
Writing Prospectus or for additional information, (iii) of the issuance by
the
SEC of any stop order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, (iv) if at any time
the
representations and
warranties
of the Company contained in any agreement (including any underwriting agreement
contemplated by Section 2.5(p) below) cease to be true and correct, (v)
of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening
of any
proceeding for such purpose, and (vi) of the happening of any event that
makes
any statement made in such Registration Statement or related Prospectus or
any
document incorporated or deemed to be incorporated therein by reference or
any
Issuer Free Writing Prospectus related thereto untrue in any material respect
or
that requires the making of any changes in such Registration Statement,
Prospectus, documents or Issuer Free Writing Prospectus so that, in the case
of
the Registration Statement, it will not contain any 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, not misleading, and that in
the
case of any Prospectus or Issuer Free Writing Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) Use
its reasonable best efforts to obtain the withdrawal of any order suspending
the
effectiveness of a Registration Statement, or the lifting of any suspension
of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction at the reasonably earliest practical
date.
(e) If
requested by the managing underwriter(s), if any, or the Holders of a majority
of the Registrable Securities being sold in connection with an underwritten
offering, promptly include in a Prospectus supplement, post-effective amendment
or Issuer Free Writing Prospectus such information as the managing
underwriter(s), if any, or such Holders may reasonably request in order to
permit the intended method of distribution of such securities and make all
required filings of such Prospectus supplement, such post-effective amendment
or
Issuer Free Writing Prospectus as soon as practicable after the Company has
received such request.
(f) Furnish
or make available to each Selling Holder, and each managing underwriter,
if any,
without charge, such number of conformed copies of the Registration Statement
and each post-effective amendment thereto, including financial statements
(but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference, and all exhibits, unless requested in writing by such
Holder, counsel or managing underwriter(s)), and such other documents, as
such
Holders or such managing underwriter(s) may reasonably request, and upon
request
a copy of any and all transmittal letters or other correspondence to or received
from, the SEC or any other Governmental Entity relating to such
offering.
(g) Deliver
to each Selling Holder, and the managing underwriter(s), if any, without
charge,
as many copies of the Prospectus or Prospectuses (including each form of
Prospectus and any Issuer Free Writing Prospectus related to any such
Prospectuses) and each amendment or supplement thereto as such Persons may
reasonably request in connection with the distribution of the Registrable
Securities; and the Company, subject to the last paragraph of this Section
2.5,
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Selling Holders and the managing underwriter(s), if
any,
in
connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any such amendment or supplement thereto.
(h) Prior
to any public offering of Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the Selling Holders, the
managing underwriter(s), if any, and their respective counsel in connection
with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or “Blue Sky” laws of such jurisdictions within the United States as
any seller or managing underwriter(s) reasonably requests in writing and
to keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and to take any other action that may be necessary or advisable to enable
such
Selling Holders to consummate the disposition of such Registrable Securities
in
such jurisdiction; provided, however, that the Company will not be required
to
(i) qualify generally to do business in any jurisdiction where it is not
then so
qualified or (ii) take any action that would subject it to general service
of
process in any such jurisdiction where it is not then so subject.
(i) Cooperate
with the Selling Holders and the managing underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates (not bearing any legends)
representing Registrable Securities to be sold after receiving written
representations from each Selling Holder that the Registrable Securities
represented by the certificates so delivered by such Selling Holder will
be
transferred in accordance with the Registration Statement, and enable such
Registrable Securities to be in such denominations and registered in such
names
as the managing underwriter(s), if any, or the Selling Holders may request
at
least 2 Business Days prior to any sale of Registrable Securities.
(j) Use
its reasonable best efforts to cause the Registrable Securities covered by
the
Registration Statement to be registered with or approved by such other
Governmental Entities within the United States, except as may be required
solely
as a consequence of the nature of such Selling Holder’s business, in which case
the Company will cooperate in all reasonable respects with the filing of
such
Registration Statement and the granting of such approvals, as may be necessary
to enable the seller or sellers thereof or the managing underwriter(s), if
any,
to consummate the disposition of such Registrable Securities.
(k) Upon
the occurrence of any event contemplated by Section 2.5(c)(ii), (c)(iii),
(c)(iv), (c)(v) or (c)(vi) above, prepare a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference or an Issuer Free Writing Prospectus related thereto, or file any
other required document so that, as thereafter delivered to the Selling Holders,
such Prospectus will not contain an untrue statement of a material fact or
omit
to state a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
(l) Prior
to the effective date of the Registration Statement relating to the Registrable
Securities, provide a CUSIP number for the Registrable Securities and, if
such
Registrable Securities are Notes, provide the Trustee under the Indenture
with
certificates for the Notes that are in a form eligible for deposit with The
Depository Trust Company.
(m) Provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a date not
later than the effective date of such Registration Statement.
(n) If
the applicable Registrable Securities are Notes, cause the Indenture to be
qualified under the TIA not later than the effective date of the Registration
Statement relating to the Registrable Securities, and, in connection therewith,
reasonably cooperate with the Trustee and the Selling Holders 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 its
reasonable best 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 SEC to enable such Indenture to be so qualified
in
a timely manner. In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall appoint
a new trustee thereunder pursuant to the applicable provisions of the
Indenture.
(o) Use
its reasonable best efforts to cause all shares of Purchased Common Stock
covered by such Registration Statement to be authorized to be listed on each
national securities exchange, if any, on which similar securities issued
by the
Company are then listed.
(p) Enter
into such agreements (including an underwriting agreement in form, scope
and
substance as is customary in underwritten offerings) and take all such other
actions reasonably requested by the Holders of a majority of the Registrable
Securities being sold in connection therewith or by the managing underwriter(s),
if any, to expedite or facilitate the disposition of such Registrable
Securities, and in connection therewith, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Selling
Holders and the managing underwriter(s), if any, with respect to the business
of
the Company and its subsidiaries, and the Registration Statement, Prospectus
and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made
by
issuers in underwritten offerings, and, if true, confirm the same if and
when
requested, (ii) use its reasonable best efforts to furnish to the Selling
Holders of such Registrable Securities 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 underwriter(s), if any, and counsels
to the Selling Holders of the Registrable Securities), addressed to each
Selling
Holder of Registrable Securities and each of the managing underwriter(s),
if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested
by
such counsel and managing underwriter(s), (iii) use its reasonable best efforts
to obtain “cold comfort” letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified 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 Registration
Statement) who have certified the financial statements included in such
Registration Statement, addressed to each Selling Holder of Registrable
Securities (unless such accountants shall be prohibited from so addressing
such
letters by applicable standards of the accounting profession) and each of
the
managing underwriter(s), if any, such letters to be in customary form and
covering matters of the type customarily covered in “cold comfort” letters in
connection with underwritten offerings, (iv) if an underwriting agreement
is
entered
into, the same shall contain indemnification provisions and procedures
substantially to the effect set forth in Section 2.6 hereof with respect
to all
parties to be indemnified pursuant to said Section except as otherwise agreed
by
the Holders of a majority of the Registrable Securities being sold in connection
therewith and the managing underwriter(s) and (v) deliver such documents
and
certificates as may be reasonably requested by the Holders of a majority
of the
Registrable Securities being sold in connection therewith, their counsel
and the
managing underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company. The above shall be done at
each
closing under such underwriting or similar agreement, or as and to the extent
required thereunder.
(q) Upon
execution of a customary confidentiality agreement, make available for
inspection by a representative of the Selling Holders, the managing
underwriter(s), if any, and any attorneys or accountants retained by such
Selling Holders or managing underwriter(s), at the offices where normally
kept,
during reasonable business hours, financial and other records, pertinent
corporate documents and properties of the Company and its Subsidiaries, and
cause the officers, directors and employees of the Company and its Subsidiaries
to supply all information in each case reasonably requested by any such
representative, managing underwriter(s), attorney or accountant in connection
with such Registration Statement.
(r) Cause
its officers to use their reasonable best efforts to support the marketing
of
the Registrable Securities covered by the Registration Statement (including,
without limitation, by participation in “road shows”) taking into account the
Company’s business needs.
(s) Otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the SEC and any applicable national securities exchange, and
make
available to its security holders, as soon as reasonably practicable (but
not
more than 18 months) after the effective date of the registration statement,
an
earnings statement which shall satisfy the provisions of Section 11(a) of
the
Securities Act.
The
Company may require each Selling Holder to furnish to the Company in writing
such information required in connection with such registration regarding
such
Selling Holder and the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any Selling
Holder who unreasonably fails to furnish such information within a reasonable
time after receiving such request.
Each
Selling Holder agrees that, upon receipt of any notice from the Company of
the
happening of any event of the kind described in Section 2.5(c)(ii), (c)(iii),
(c)(iv), (c)(v) or (c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 2.5(k) hereof,
or
until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus; provided, however, that the Company
shall
extend
the
time periods under Section 2.2 and Section 2.3 with respect to the length
of
time that the effectiveness of a Registration Statement must be maintained
by
the amount of time the Holder is required to discontinue disposition of such
securities.
Section
2.6. Indemnification.
(a) Indemnification
by the Company. The Company shall indemnify and hold harmless, to
the fullest extent permitted by Law, each Selling Holder whose Registrable
Securities are covered by a Registration Statement or Prospectus, the officers,
directors, partners (limited and general), members, managers, shareholders,
accountants, attorneys, agents and employees of each of them, each Person
who
controls (within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act) each such Selling Holder and the officers, directors,
partners (limited and general), members, managers, shareholders, accountants,
attorneys, agents and employees of each such controlling person, each
underwriter (including any Holder that is deemed to be an underwriter pursuant
to any SEC comments or policies), if any, and each Person who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) such underwriter (collectively, “Holder
Indemnitees”), from and against any and all losses, claims,
damages, liabilities, expenses (including, without limitation, costs of
preparation and reasonable attorneys’ fees and any other reasonable fees or
expenses incurred by such party in connection with any investigation or Action),
judgments, fines, penalties, charges and amounts paid in settlement
(collectively, “Losses”), as incurred, arising out of or
based upon any untrue statement (or alleged untrue statement) of a material
fact
contained in any applicable Registration Statement (or in any preliminary
or
final Prospectus contained therein, any document incorporated by reference
therein or Issuer Free Writing Prospectus related thereto) or any other offering
circular, amendment of or supplement to any of the foregoing or other document
incident to any such registration, qualification, or compliance, or based
on any
omission (or alleged omission) to state therein (in the case of a final or
preliminary Prospectus, in light of the circumstances under which they were
made) a material fact required to be stated therein or necessary to make
the
statements therein not misleading, or any violation by the Company of the
Securities Act or of the Exchange Act in connection with any such registration,
qualification, or compliance; provided, that the Company will not be
liable to a Selling Holder or underwriter in any such case to the extent
that
any such Loss arises out of or is based on any untrue statement or omission
by
such Selling Holder or underwriter, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission)
is
made in such Registration Statement (or in any preliminary or final Prospectus
contained therein, any document incorporated by reference therein or Issuer
Free
Writing Prospectus related thereto), offering circular, amendment of or
supplement to any of the foregoing or other document in reliance upon and
in
conformity with written information furnished to the Company by such Selling
Holder or underwriter specifically for inclusion in such document. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Holder Indemnitee or any other Holder and shall
survive the transfer of such securities. The foregoing indemnity agreement
is in
addition to any liability that the Company may otherwise have to each Holder
Indemnitee.
(b) Indemnification
by Selling Holders. In connection with any Registration Statement
in which a Selling Holder is participating by registering Registrable
Securities, such Selling Holder shall furnish to the Company in writing such
information as the Company
reasonably
requests specifically for use in connection with any Registration Statement
or
Prospectus and agrees to indemnify and hold harmless, to the fullest extent
permitted by Law, severally and not jointly, the Company, the officers and
directors of the Company, and each Person who controls (within the meaning
of
Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company,
and each underwriter, if any, and each Person who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) such
underwriter (collectively, “Company Indemnitees”), from
and against all Losses, as incurred, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
such
Registration Statement (or in any preliminary or final Prospectus contained
therein, any document incorporated by reference therein or Issuer Free Writing
Prospectus related thereto) or any other offering circular or any amendment
of
or supplement to any of the foregoing or any other document incident to such
registration, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
(in the case of a final or preliminary Prospectus, in light of the circumstances
under which they were made) not misleading, in each case solely to the extent
that such untrue statement (or alleged untrue statement) or omission (or
alleged
omission) is made in such Registration Statement (or in any preliminary or
final
Prospectus contained therein, any document incorporated by reference therein
or
Issuer Free Writing Prospectus related thereto), offering circular, or any
amendment of or supplement to any of the foregoing or other document in reliance
upon and in conformity with written information furnished to the Company
by such
Selling Holder expressly for inclusion in such document; and provided,
however, that the liability of each Selling Holder hereunder shall
be
limited to the net proceeds received by such Selling Holder from the sale
of
Registrable Securities covered by such Registration Statement.
(c) Conduct
of Indemnification Proceedings. If any Person shall be entitled
to indemnity hereunder (an “indemnified party”), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the “indemnifying party”) of any
claim or of the commencement of any Action with respect to which such
indemnified party seeks indemnification or contribution pursuant hereto;
provided, however, that the delay or failure to so notify the
indemnifying party shall not relieve the indemnifying party from any obligation
or liability except to the extent that the indemnifying party has been actually
prejudiced by such delay or failure. The indemnifying party shall have the
right, exercisable by giving written notice to an indemnified party promptly
after the receipt of written notice from such indemnified party of such claim
or
Action, to assume, at the indemnifying party’s expense, the defense of any such
Action, with counsel reasonably satisfactory to such indemnified party;
provided, however, that an indemnified party shall have the right
to employ separate counsel in any such Action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of
such indemnified party unless: (i) the indemnifying party agrees to pay such
fees and expenses; (ii) the indemnifying party fails promptly to assume,
or in
the event of a conflict of interest cannot assume, the defense of such Action
or
fails to employ counsel reasonably satisfactory to such indemnified party,
in
which case the indemnified party shall also have the right to employ counsel
and
to assume the defense of such Action; or (iii) in the indemnified party’s
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such Action; provided,
further, however, that the indemnifying party shall not, in
connection with any one such Action or separate but substantially similar
or
related Actions in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than
one firm of attorneys (together
with
appropriate local counsel) at any time for all of the indemnified parties,
or
for fees and expenses that are not reasonable. Whether or not such defense
is
assumed by the indemnifying party, such indemnified party will not be subject
to
any liability for any settlement made without its consent (but such consent
will
not be unreasonably withheld or delayed). The indemnifying party shall not
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by all claimants or
plaintiffs to such indemnified party of a release, in form and substance
reasonably satisfactory to the indemnified party, from all liability in respect
of such claim or litigation.
(d) Contribution. (i)
If the indemnification provided for in this Section 2.6 is unavailable to
an
indemnified party in respect of any Losses (other than in accordance with
its
terms), then each applicable indemnifying party, in lieu of indemnifying
such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the
one
hand, and such indemnified party, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses as well as
any
other relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been taken by, or relates
to
information supplied by, such indemnifying party or indemnified party, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent any such action, statement or omission.
(ii)
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 2.6(d) were determined by pro rata allocation or
by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding anything to the contrary contained in this Section 2.6(d),
an
indemnifying party that is a Selling Holder shall not be required to contribute
any amount in excess of the amount by which the net proceeds from the sale
of
the Registrable Securities sold by such indemnifying party exceeds the amount
of
any damages that such indemnifying party has otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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.
Section
2.7. Rule
144; Rule 144A. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange
Act
and the rules and regulations adopted by the SEC thereunder (or, if the Company
is not required to file such reports, it will, upon the request of any Holder,
make publicly available other information so long as necessary to permit
sales
pursuant to Rule 144 or 144A under the Securities Act), and it will take
such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 or 144A or Regulation S under the Securities Act,
as
such Rules may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder,
the
Company will deliver to such Holder a written statement as to whether it
has
complied with such
requirements
and, if not, the specifics thereof.
Section
2.8. Underwritten
Registrations. (b) If any offering of Registrable Securities
pursuant to a Shelf Registration Statement or any Demand Registration is
an
underwritten offering, the Holders’ Representative shall have the right to
select the investment banker or investment bankers and managers to administer
the offering, subject to approval by the Company, not to be unreasonably
withheld. The Company shall have the right to select the investment banker
or
investment bankers and managers to administer any incidental or piggyback
registration.
(b) No
Person may participate in any underwritten registration hereunder unless
such
Person (i) agrees to sell the Registrable Securities or Other Securities
it
desires to have covered by the registration on the basis provided in any
underwriting arrangements in customary form and (ii) completes and executes
all
questionnaires, powers of attorney, indemnities, underwriting agreements
and
other documents required under the terms of such underwriting arrangements,
provided that such Person shall not be required to make any representations
or
warranties other than those related to title and ownership of shares and
as to
the accuracy and completeness of statements made in a Registration Statement,
Prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company or the managing
underwriter(s) by such Person and provided further, that such Person’s liability
in respect of such representations and warranties shall not exceed such Person’s
net proceeds from the offering.
Section
2.9. Registration
Expenses. The Company shall pay all reasonable fees and expenses
incident to the performance of or compliance with its obligations under this
Article II, including (i) all registration and filing fees (including fees
and
expenses (A) with respect to filings required to be made with all applicable
securities exchanges and/or the National Association of Securities Dealers,
Inc.
and (B) of compliance with securities or Blue Sky laws including any fees
and
disbursements of counsel for the underwriter(s) in connection with Blue Sky
qualifications of the Registrable Securities pursuant to Section 2.5(h)),
(ii)
printing expenses (including expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company
and
of printing Prospectuses if the printing of Prospectuses is requested by
the
managing underwriter(s), if any, or by the Holders of a majority of the
Registrable Securities included in any Registration Statement), (iii) messenger,
telephone and delivery expenses of the Company, (iv) fees and disbursements
of
counsel for the Company, (v) expenses of the Company incurred in connection
with
any road show, (vi) fees and disbursements of all independent
certified public accountants (including, without limitation, the expenses
of any
“cold comfort” letters required by this Agreement) and any other persons,
including special experts retained by the Company, and (vii) fees and
disbursements of one counsel for the Selling Holders, in an amount not to
exceed
$20,000 for each registration. For the avoidance of doubt, the
Company shall bear all of its internal expenses (including all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and rating
agency fees and the fees and expenses of any Person, including special experts,
retained by the Company.
Section
2.10. Other
Agreements. The Company covenants and agrees that, so long as any
Holder holds any Registrable Securities in respect of which any registration
rights provided for in this Article II remain in effect, the Company will
not,
directly or indirectly, grant to any Person or agree to or otherwise become
obligated in respect of (a) rights of registration in the nature or
substantially in the nature of those set forth in this Article II that would
have priority over the Registrable Securities with respect to the inclusion
of
such securities in any registration or (b) rights of registration in the
nature
or substantially in the nature of those set forth in this Article II that
would
be pari passu with the Registrable Securities with respect to the inclusion
of
such securities in any registration, without the prior written consent of
the
Holders’ Representative.
Section
2.11. Securities
Held by the Company or its Subsidiaries. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, in the event that the Company or any of its Subsidiaries
holds Registrable Securities, such Registrable Securities shall not be counted
in determining whether such consent or approval was given by the Holders
of such
required percentage.
ARTICLE
III
MISCELLANEOUS
Section
3.1. Conflicting
Agreements. Each party represents and warrants that it has not
granted and is not a party to any proxy, voting trust or other agreement
that is
inconsistent with or conflicts with any provision of this
Agreement.
Section
3.2. Termination. This
Agreement shall terminate upon the later of the expiration of the Shelf Period
and such time as there are no Registrable Securities, except for the provisions
of Sections 2.7, 2.8, 2.10 and this Article III, which shall survive such
termination.
Section
3.3. Amendment
and Waiver. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the Company and Purchaser
(or,
in the case of an amendment at any time when Purchaser is not the sole Holder,
signed on behalf of each of (i) the Company and (ii) the Holders of a majority
of the aggregate number of Registrable Securities then held by all Holders).
Any
party hereto may waive any right of such party hereunder by an instrument
in
writing signed by such party and delivered to the other parties (or, in the
case
of a waiver of any rights of the Holders at any time when Purchaser is not
the
sole Holder, by an instrument in writing signed by the Holders of a majority
of
the aggregate number of Registrable Securities then held by all Holders and
delivered to the Company and the Holders’ Representative). The failure of any
party to enforce any of the provisions of this Agreement shall in no way
be
construed as a waiver of such provisions and shall not affect the right of
such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
Section
3.4. Severability. If
any provision of this Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, all other provisions of
this
Agreement shall not be affected and shall remain in full force and
effect.
Section
3.5. Entire
Agreement. Except as otherwise expressly set forth herein, this
Agreement
and the Investment Agreement, together with the several agreements and other
documents and instruments referred to herein or therein or annexed hereto
or
thereto, embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersede and preempt
any
prior understandings, agreements or representations by or among the parties,
written or oral, that may have related to the subject matter hereof in any
way.
Section
3.6. Successors
and Assigns. Neither this Agreement nor any right or obligation
hereunder is assignable in whole or in part by any party without the prior
written consent of the other party hereto, provided that Purchaser may
transfer its rights and obligations hereunder (in whole or in part) to any
Transferee (and any Transferee may transfer such rights and obligations to
any
subsequent Transferee) without the prior written consent of the Company.
Any
such assignment shall be effective upon receipt by the Company of (x) written
notice from the transferring Holder stating the name and address of any
Transferee and identifying the number of shares of Registrable Securities
with
respect to which the rights under this Agreement are being transferred and
the
nature of the rights so transferred and (y) a written agreement in substantially
the form attached as Exhibit A hereto from such Transferee to be bound by
the applicable terms of this Agreement.
Section
3.7. Counterparts;
Execution by Facsimile Signature. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all
of
which together shall constitute one instrument. This Agreement may be executed
by facsimile signature(s).
Section
3.8. Remedies. (a)
Each party hereto acknowledges that monetary damages would not be an adequate
remedy in the event that any of the covenants or agreements in this Agreement
is
not performed in accordance with its terms, and it is therefore agreed that,
in
addition to and without limiting any other remedy or right it may have, the
non-breaching party will have the right to an injunction, temporary restraining
order or other equitable relief in any court of competent jurisdiction enjoining
any such breach or threatened breach and enforcing specifically the terms
and
provisions hereof. Each party hereto agrees not to oppose the granting of
such
relief in the event a court determines that such a breach has occurred, and
to
waive any requirement for the securing or posting of any bond in connection
with
such remedy.
(b) All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any party
shall
not preclude the simultaneous or later exercise of any other such right,
power
or remedy by such party.
Section
3.9. Notices. All
notices required or permitted hereunder shall be in writing and shall be
deemed
effectively given (i) upon personal delivery to the party to be notified,
(ii)
when sent by confirmed facsimile if sent during normal business hours of
the
recipient, if not, then on the next Business Day or (iii) one Business Day
after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall
be sent
to the addresses set forth below or such other address or facsimile number
as a
party may from time to time specify by notice to the other parties
hereto:
|
If
to the Company:
|
|
|
E*TRADE
Financial Corporation
|
|
|
000
X. Xxxxx
Xxxx
|
|
|
Xxxxxxxxx,
XX
00000
|
|
|
Attention: Xxxxx
X.
Xxxxxxx, Esq.
|
|
|
Chief
Administrative Officer &
General Counsel
|
|
|
Fax: (000)
000-0000
|
|
|
with
a copy (which shall not constitute notice) to:
|
|
|
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
|
|
Attention: Xxxxxx
X. Xxxxx, Xx., Esq.
Xxxx
X. Xxxxxxx, Esq.
|
|
|
Fax: (000)
000-0000
|
|
|
If
to Purchaser:
|
|
|
Xxxxxxx
Capital Ltd.
c/o
Citadel Limited Partnership
000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
|
|
|
Attention: Xxxx
Xxxxxx, Esq.
|
|
|
Fax: (000)
000-0000
|
|
|
with
a copy (which shall not constitute notice) to:
|
|
|
Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
|
|
|
Xxx
Xxx Xxxx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention: Xxxxxx
X. Xxxxxxxxx, Esq.
Xxxxx
X. Shine, Esq.
|
|
|
Fax:
(000) 000-0000
|
|
Section
3.10. Governing
Law; Consent to Jurisdiction. (a) This Agreement shall be
governed in all respects by the laws of the State of New York.
(b) Each
of the parties hereto (i) consents to submit itself to the personal jurisdiction
of any Federal or state court located in the Borough of Manhattan in the
City of
New York, New York in the event any dispute arises out of this Agreement,
(ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction
by
motion or other request for leave from
any
such
court and (iii) agrees that it will not bring any action relating to this
Agreement in any court other than a Federal or state court located in the
Borough of Manhattan in the City of New York, New York.
(c) Each
of the parties hereto hereby irrevocably and unconditionally waives trial
by
jury in any legal action or proceeding in relation to this Agreement and
for any
counterclaim therein.
IN
WITNESS
WHEREOF, the parties hereto have executed this Registration Rights Agreement
as
of the date first written above.
| E*TRADE FINANCIAL CORPORATION | ||||
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |||
|
Name:
Xxxxxx X. Xxxxxx
|
||||
|
Title:
President and COO
|
||||
|
XXXXXXX
CAPITAL LTD.
By:
Citadel Limited Partnership, Portfolio Manager
By:
Citadel Investment Group, L.L.C., its General Partner
|
||||
|
By:
|
/s/ Xxxx Xxxxxx | |||
|
Name:
Xxxx Xxxxxx
|
||||
|
Title:
Senior Managing Director and General Counsel
|
||||
[Registration
Rights Agreement Signature Page]
EXHIBIT
A
JOINDER
By
execution of this Joinder, the undersigned agrees to become a party to that
certain Registration Rights Agreement, dated as of November 29, 2007 (the
“Agreement”), by and between E*TRADE Financial Corporation and Xxxxxxx Capital
Ltd. By execution of this Joinder, the undersigned shall have all the rights
and
shall observe all the obligations of a Holder (as defined in the Agreement)
contained in the Agreement.
|
Name:
_______________________
___
|
|||||
|
Address
for Notices:
|
With
Copies to:
|
||||
|
Signature:
_____________________________
_
|
|||||
|
Date:
|
|||||
