Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
November 16, 2004, by and among Vector Group Ltd., a Delaware corporation, with
headquarters located at 000 X.X. Xxxxxx Xxxxxx, Xxxxx, XX 00000 (the "COMPANY"),
and the undersigned buyers (each, a "BUYER", and collectively, the "BUYERS").
WHEREAS:
A. The Company has authorized the issuance of up to
$81,875,000 principal amount of its 5.0% Variable Interest Senior Convertible
Notes (the "INITIAL NOTES") pursuant to the Indenture dated on or about November
18, 2004, between the Company and Xxxxx Fargo Bank, N.A., as Trustee (as the
same may be amended from time to time, the "INDENTURE"), which will, among other
things, be convertible into shares of the Company's common stock, par value
$0.10 per share (as converted, the "CONVERSION SHARES") in accordance with the
terms of the Notes and the Indenture.
B. In connection with the Securities Purchase Agreement by and
among the parties hereto of even date herewith (the "SECURITIES PURCHASE
AGREEMENT"), the Company has agreed, upon the terms and subject to the
conditions set forth in the Securities Purchase Agreement, to issue and sell to
the Buyers an aggregate of $65,500,000 principal amount of the Notes).
C. In connection with the Securities Purchase Agreement, the
Company has agreed, upon the terms and subject to the conditions set forth in
the Securities Purchase Agreement, to issue and sell to the Buyers certain
additional investment rights (the "ADDITIONAL INVESTMENT RIGHTS"), which will be
exercisable to purchase up to an aggregate of $16,375,000 principal amount of
additional Notes (the "ADDITIONAL NOTES" and collectively with the Initial
Notes, the "NOTES").
D. To induce the Buyers to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"1933 ACT"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each
of the Buyers hereby agree as follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Securities Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"1934 ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"ADDITIONAL INVESTMENT RIGHTS" has the meaning set forth in
the preamble of this Agreement.
"ADDITIONAL NOTES" has the meaning set forth in the preamble
of this Agreement.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person
whether through the ownership of voting securities or by agreement or otherwise.
"BUSINESS DAY" means any day other than Saturday, Sunday or
any other day on which commercial banks in The City of New York are authorized
or required by law to remain closed.
"BUYERS" has the meaning set forth in the preamble of this
Agreement.
"CLOSING DATE" means the date of the closing of the sale of
the Initial Notes as contemplated by the Securities Purchase Agreement.
"COMMON STOCK" means the common stock, par value $0.10 per
share, of the Company, as it exists on the date of this Agreement and any other
shares of capital stock or other securities of the Company into which such
Common Stock may be reclassified or changed, together with any and all other
securities which may from time to time be issuable upon conversion of Notes.
"COMPANY" has the meaning set forth in the preamble of this
Agreement.
"CONVERSION SHARES" has the meaning set forth in the preamble
of this Agreement.
"EFFECTIVE DATE" means the date the Registration Statement has
been declared effective by the SEC.
"HOLDER" means a Person who is a holder or beneficial owner of
any Notes or Conversion Shares; provided that, unless otherwise expressly stated
herein, only registered holders of Notes or Conversion Shares shall be counted
for purposes of calculating any proportion of holders entitled to take any
action or give notice pursuant to this Agreement.
"HOLDER INFORMATION" with respect to any Holder means
information with respect to such Holder required to be included in any Shelf
Registration Statement or the related Prospectus pursuant to the 1933 Act and
which information is included therein in reliance upon and in conformity with
information furnished to the Company in writing by such Holder specifically for
inclusion therein.
"INDENTURE" has the meaning set forth in the preamble hereto.
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"INITIAL NOTES" has the meaning set forth in the preamble of
this Agreement.
"LEGAL COUNSEL" means one firm or counsel designated by the
Company (and reasonably acceptable to the Buyers acting on behalf of the
Holders) to act as counsel for the Holders in connection therewith, which firm
shall be Xxxxxxx Xxxx & Xxxxx LLP.
"LOSSES" has the meaning set forth in Section 5(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the then
outstanding aggregate principal amount of Notes being registered under a Shelf
Registration Statement; provided that Holders of the shares of Common Stock
issued upon conversion of Notes shall be deemed to be Holders of the aggregate
principal amount of Notes from which such Common Stock was converted; and
provided further, that Notes or shares of Common Stock which have been sold or
otherwise transferred pursuant to the Shelf Registration Statement shall not be
included in the calculation of Majority Holders.
"NASD" means the National Association of Securities Dealers,
Inc.
"NOTES" has the meaning set forth in the preamble hereto.
"NOTICE AND QUESTIONNAIRE" means a Selling Securityholder
Notice and Questionnaire substantially in the form of Exhibit A attached hereto.
"NOTICE HOLDER" means any Holder of Transfer Restricted
Securities that has delivered a properly completed and signed Notice and
Questionnaire to the Company in accordance with Section 2(b) hereof.
"PERSON" has the meaning set forth in the Indenture.
"POST-EFFECTIVE AMENDMENT" has the meaning set forth in
Section 2(b)(ii) of this Agreement.
"PROSPECTUS" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the 1933 Act),
as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Notes or the Conversion Shares
covered by such Shelf Registration Statement, and all amendments and supplements
to such prospectus, including all documents incorporated or deemed to be
incorporated by reference in such prospectus.
"QUESTIONNAIRE DEADLINE" has the meaning set forth in Section
2(b) hereof.
"RECORD HOLDER" means, with respect to a Registration Default
Payments Payment Date, each Person who is registered on the books of the
registrar as the holder of Notes at the close of business on the February 1, May
1, August 1 and November 1, as applicable, immediately preceding such
Registration Default Payments Payment Date.
"REGISTRATION DEFAULT" has the meaning set forth in Section
2(e) hereof.
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"REGISTRATION DEFAULT PAYMENTS" has the meaning set forth in
Section 2(e) hereof.
"REGISTRATION DEFAULT PAYMENTS PAYMENT DATE" means each
February 15, May 15, August 15 and November 15.
"RULE 144" means Rule 144 under the 1933 Act (or any
successor provision promulgated by the SEC).
"RULE 144A" means Rule 144A under the 1933 Act (or any
successor provision promulgated by the SEC).
"RULE 144(k)" means Rule 144(k) under the 1933 Act (or any
successor provision promulgated by the SEC).
"RULE 415" means Rule 415 under the 1933 Act (or any
successor provision promulgated by the SEC).
"SEC" means the Securities and Exchange Commission.
"SECURITIES PURCHASE AGREEMENT" has the meaning set forth in
the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in
Section 2(c) hereof.
"SHELF REGISTRATION STATEMENT" means any "shelf" registration
statement of the Company filed pursuant to the provisions of Section 2 hereof
which covers the Transfer Restricted Securities on Form S-3 or on another
appropriate form (as determined by the Company) for an offering to be made on a
delayed or continuous basis pursuant to Rule 415 and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all documents incorporated or deemed to be incorporated by reference
therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 2(d)
hereof.
"TRANSFER RESTRICTED SECURITIES" means each Note (including
Notes issuable upon exercise of Additional Investment Rights) and each
Conversion Share issuable upon conversion thereof (and any security issued with
respect thereto upon any stock dividend, split or similar event) until the
earliest of the date on which such Note or Conversion Share, or any security
issued with respect thereto upon any stock dividend, split or similar event, as
the case may be: (i) has been transferred pursuant to a Shelf Registration
Statement or another registration statement covering such Note or Conversion
Share which has been filed with the SEC pursuant to the 1933 Act, in either case
after such registration statement has become effective and while such
registration statement is effective under the 1933 Act; (ii) has been
transferred pursuant to Rule 144; (iii) may be sold or transferred pursuant to
Rule 144(k); or (iv) ceases to be outstanding. Notwithstanding the foregoing,
each Note and each Conversion Share issuable
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upon conversion thereof (and any security issued with respect thereto upon any
stock dividend, split or similar event) that has not previously ceased to be a
Transfer Restricted Security pursuant to the previous sentence shall cease to be
a Transfer Restricted Security on the date that is two (2) years after the later
of the Closing Date or the Expiration Date (as defined in the Additional
Investment Rights).
"TRUSTEE" means the trustee with respect to the Notes under
the Indenture.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," or "stated" in
the Shelf Registration Statement, any preliminary Prospectus or Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information incorporated or
deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the 1934 Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
2. Shelf Registration Statement.
a. The Company shall, at its expense, prepare
and file with the SEC within 60 days following the Closing Date a Shelf
Registration Statement with respect to resales of the Transfer Restricted
Securities by the Holders from time to time on a delayed or continuous basis
pursuant to Rule 415 and in accordance with the methods of distribution set
forth in such Shelf Registration Statement and thereafter shall use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective under the 1933 Act within 180 days after the Closing Date.
The Company shall supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for the Shelf Registration Statement, or
by the 1933 Act, the 1934 Act or the SEC.
b. (i) The Company shall name each Holder that
delivers a properly completed and signed Notice and Questionnaire to the Company
as a selling Note holder in the Shelf Registration Statement. A Holder of
Transfer Restricted Securities may include such securities in the Shelf
Registration Statement only if the Holder sends by first-class registered mail
or by courier with delivery confirmation, a properly completed Notice and
Questionnaire to the Company. The Company shall deliver the Notice and
Questionnaire to the Buyers within five (5) Business Days of the Closing Date.
In order to be included in the Shelf Registration Statement at the time of its
effectiveness, the Notice and Questionnaire must be sent on or prior to the 10th
Business Day after the date the Notice and Questionnaire is deemed to have been
given in accordance with Section 6(c) hereof (or, in the case of a Holder that
is a transferee of Transfer Restricted Securities, on or prior to the earlier of
(x) the 20th Business Day after the completion of the transfer of Transfer
Restricted Securities to the transferee and (y) 9:00 a.m., New York time, on the
fifth Business Day prior to initial effectiveness of the Shelf Registration
Statement) (in any case, the "QUESTIONNAIRE DEADLINE"). The Company agrees and
undertakes that it shall distribute a Notice and Questionnaire (A) no later than
30 Business Days prior to the
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expected effectiveness of the Shelf Registration Statement to each Holder in
accordance with Section 6(c) hereof, and (B) in the case of a Holder that is a
transferee of Transfer Restricted Securities, upon the request of such
transferee Holder given in accordance with Section 6(c) hereof, to such Holder
at the address set forth in such request.
(ii) Following the effectiveness of the
Shelf Registration Statement, upon receipt of a completed Notice and
Questionnaire from a Holder, the Company will, as promptly as practicable, but
in any event within ten (10) Business Days after its receipt thereof, file any
supplements to the related Prospectus or file any post-effective amendment to
the Shelf Registration Statement that is required by applicable law to cause a
Holder to be named as a selling securityholder in the Shelf Registration
Statement and permit such Holder to deliver the Prospectus to purchasers of
Transfer Restricted Securities (a "POST-EFFECTIVE AMENDMENT") (subject to the
right of the Company to suspend the use of the Prospectus as described in
Section 2(d) hereof); provided, however, that (i) if a supplement to the related
Prospectus is required to permit the Holder (or other Holders not included in
the Shelf Registration Statement upon effectiveness) to deliver the Prospectus
to purchasers of Transfer Restricted Securities, the Company shall not be
required to file more than one (1) such supplement during any twenty (20) day
period and (ii) if a post effective amendment to the Shelf Registration
Statement is required to permit the Holder (or other Holders not included in the
Shelf Registration Statement upon effectiveness) to deliver the Prospectus to
purchasers of Transfer Restricted Securities, the Company shall not be required
to file more than one (1) post-effective amendment to the Shelf Registration
Statement in any sixty (60) day period. The Company shall use its reasonable
best efforts to cause any such post-effective amendment to become effective
under the 1933 Act as promptly as is practicable; provided, that if a Notice and
Questionnaire is delivered to the Company during a Suspension Period, the
Company shall not be obligated to amend the Shelf Registration Statement or
supplement the Prospectus until the termination of such Suspension Period.
(iii) Each Holder as to which the Shelf
Registration Statement is being effected shall furnish promptly to the Company
(x) such other information as the Company may reasonably request for use in
connection with the Shelf Registration Statement or Prospectus or in any
application to be filed with or under state securities laws and (y) all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading.
c. The Company shall use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended under the 1933 Act in order to permit the Prospectus
forming a part thereof to be usable, subject to Section 2(d) hereof, by all
Notice Holders until the earliest to occur of: (i) the last date on which in the
opinion of counsel to the Company the holding period applicable to sales of all
Transfer Restricted Securities under Rule 144(k) has expired; (ii) the date as
of which all Transfer Restricted Securities have been transferred under Rule 144
under circumstances in which any legend borne by such Notes or Conversion Shares
relating to restrictions on transferability thereof, under the 1933 Act or
otherwise, is removed; and (iii) such date as of which all Transfer Restricted
Securities have been sold pursuant to the Shelf Registration Statement after
such registration statement has been become effective and while such
registration statement is effective under the 1933 Act (in any such case, such
period being called the "SHELF REGISTRATION PERIOD"). The
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Company will, in order to fulfill its obligations and this Section 2(c): (x)
subject to Section 2(b)(ii) and 2(d), use its reasonable best efforts to prepare
and file with the SEC such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf Registration
Statement continuously effective for the Shelf Registration Period; (y) subject
to Section 2(b)(ii) and 2(d), cause the related Prospectus to be supplemented by
any required supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the 1933 Act; and (z) comply in
all material respects with the provisions of the 1933 Act with respect to the
disposition of all Transfer Restricted Securities covered by the Shelf
Registration Statement during the Shelf Registration Period.
d. The Company may suspend the availability of
any Shelf Registration Statement and the use of any Prospectus (the period
during which the availability of any Shelf Registration Statement and any
Prospectus may be suspended herein referred to as the "SUSPENSION PERIOD"),
without incurring any obligation to pay Registration Default Payments Damages
pursuant to Section 2(e), for a period not to exceed: (i) 30 consecutive days at
any one time; (ii) 45 days in the aggregate in any three-month period; or (iii)
90 days in the aggregate during any 12-month period, in each case only for valid
business reasons, to be determined in good faith by the Company in its
reasonable judgment (which shall not include the avoidance of the Company's
obligations hereunder), including, without limitation, the acquisition or
divestiture of assets, pending corporate developments, events listed in Section
3(c), public filings with the SEC and similar events; provided, that the Company
promptly thereafter complies with the requirements of Section 3(j) hereof, if
applicable, and provided further that, if a Post-Effective Amendment is required
by applicable law to cause a Holder to be named as a selling securityholder in
the Shelf Registration Statement, the period of time between the filing and the
effectiveness of any Post-Effective Amendment shall be not deemed to be a
Suspension Period hereunder. The first day of any Suspension Period must be at
least two (2) trading days after the last day of any prior Suspension Period.
e. The Company and the Buyers agree that the
Holders of Transfer Restricted Securities will suffer damages, and it would not
be feasible to ascertain the extent of such damages with precision, if the
Company fails to fulfill its obligations under Section 2 hereof. Accordingly,
if: (i) the Shelf Registration Statement is not filed with the SEC on or within
60 days after the Closing Date; (ii) the Shelf Registration Statement has not
been declared effective by the SEC within 180 days after the Closing Date; or
(iii) the Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded within 3 Business Days
by a replacement Shelf Registration Statement filed and declared effective) or
usable (including as a result of a Suspension Period) for the offer and sale of
Transfer Restricted Securities for a period of time (including any Suspension
Period) which exceeds: (x) 30 consecutive days at any time; (y) 45 days in the
aggregate in any three-month period; or (z) 90 days in the aggregate in any
12-month period (each such event referred to in clauses (i) through (iii), a
"REGISTRATION DEFAULT"), provided that any suspension of the Shelf Registration
Statement as a result of the time required by the SEC to declare effective a
post-effective amendment to the Shelf Registration Statement in connection with
the Company's obligation to file such an amendment pursuant to Section 2(b)(ii)
hereof shall not be included in the calculation of a Registration Default; the
Company shall pay to each Notice Holder (who is also a Record Holder), as
liquidated damages and not as a penalty, during any period in which a
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Registration Default has occurred or is continuing, as partial relief (which
remedy shall not be exclusive of any other remedies available at law or in
equity), in an amount (the "REGISTRATION DEFAULT PAYMENTS") equal to: (i)
one-half of one percent (50 basis points) per annum per $1,000 principal amount
of Notes constituting Transfer Restricted Securities for the period up to and
including the 90th day during which such Registration Default has occurred and
is continuing; and (ii) one percent (100 basis points) per annum per $1,000
principal amount of Notes constituting Transfer Restricted Securities for the
period including and subsequent to the 91st day during which such Registration
Default has occurred and is continuing, it being understood that all
calculations pursuant to this and the preceding sentence shall be carried out to
five decimal places. Following the cure of all Registration Defaults,
Registration Default Payments will cease to accrue with respect to such
Registration Defaults. All accrued Registration Default Payments shall be paid
by the Company on each Registration Default Payments Payment Date in cash to the
date of such cure and Registration Default Payments will be calculated on the
basis of a 360-day year consisting of twelve 30-day months. The rate of accrual
of the Registration Default Payments with respect to any period shall not exceed
the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Registration Defaults. The parties hereto agree that the
Registration Default Payments provided in this Section 2(e) constitute a
reasonable estimate of the damages that may be incurred by Holders by reason of
a Registration Default and that such Registration Default Payments are the only
monetary damages available to Holders in the event of a Registration Default.
Notwithstanding anything in the Agreement to the contrary, Registration Default
Payments shall only be payable to Notice Holders.
f. All of the Company's obligations (including,
without limitation, the obligation to pay Registration Default Payments) set
forth in the preceding paragraph which are outstanding or exist 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 security shall have been satisfied in full.
Notwithstanding the foregoing, no Registration Default Payments shall accrue as
to any Transfer Restricted Security from and after the earlier of: (i) the date
such security is no longer a Transfer Restricted Security; and (ii) the
expiration of the Shelf Registration Period.
g. Immediately upon the occurrence or the
termination of a Registration Default, the Company shall give the Trustee, so
long as the Notes remain outstanding, notice of such commencement or termination
of the obligation to pay Registration Default Payments with regard to the Notes,
and the amount thereof and of the nature of the default giving rise to such
commencement or the event giving rise to such termination, as the case may be
(such notice to be contained in an Officer's Certificate (as such term is
defined in the Indenture)), and prior to receipt of such Officer's Certificate
the Trustee and the transfer and paying agent shall be entitled to assume that
no such commencement or termination has occurred, as the case may be.
3. Registration Procedures.
In connection with any Shelf Registration Statement, the
following provisions shall apply:
a. The Company shall: (i) furnish to the
Buyers, within a reasonable period of time, but in any event within four (4)
Business Days prior to the filing thereof with the
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SEC to afford the Buyers and their counsel a reasonable opportunity for review,
a copy of each Shelf Registration Statement, and each amendment thereof, and a
copy of each Prospectus, and each amendment or supplement thereto (excluding
amendments caused by the filing of a report under the 1934 Act), and shall
reflect in each such document, when so filed with the SEC, such comments as the
Buyers may reasonably propose therein; and (ii) include information regarding
the Notice Holders and the methods of distribution they have elected for their
Transfer Restricted Securities provided to the Company in Notice and
Questionnaires as necessary to permit such distribution by the methods specified
therein.
b. Subject to Section 2(d), the Company shall
ensure that: (i) any Shelf Registration Statement and any amendment thereto and
any Prospectus forming a part thereof and any amendment or supplement thereto
comply as to form in all material respects with the 1933 Act and the rules and
regulations thereunder; (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, 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 (iii) any
Prospectus forming a part of any Shelf Registration Statement, and any amendment
or supplement to such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation with
respect to any Holder Information.
c. The Company, as promptly as reasonably
practicable (but in any event within two (2) Business Days), shall notify the
Buyers and each Notice Holder:
(i) When a Shelf Registration Statement
or any post-effective amendment thereto or any Prospectus or any supplement
thereto has been filed with the SEC and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective which notice and
confirmation can be made at the election of the Company by making a public
announcement thereof by release made to Reuters Economic Services and Bloomberg
Business News;
(ii) of any request, following
effectiveness of the Shelf Registration Statement under the 1933 Act, by the SEC
or any other federal or state governmental authority for amendments or
supplements to the Shelf Registration Statement or the Prospectus or for
additional information (other than any such request relating to a review of the
Company's 1934 Act filings);
(iii) of the issuance by the SEC or any
other federal or state governmental authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or of any order preventing or
suspending the use of any Prospectus or the initiation or threat of any
proceedings for that purpose;
(iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of the Transfer Restricted Securities included in
any Shelf Registration Statement for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose;
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(v) of the occurrence of, but not the
nature of or details concerning, any event or the existence of any condition
that requires the making of any changes in the Shelf Registration Statement or
the Prospectus or any document incorporated by reference therein so that, as of
such date, the statements therein are not misleading and the Shelf Registration
Statement or the Prospectus or any document incorporated by reference therein,
as the case may be, does not include 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 the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading;
(vi) of the Company's determination that
a post-effective amendment to the Shelf Registration Statement is necessary
(other than a post-effective amendment pursuant to Section 2(b)(ii)); and
(vii) of the commencement (including as a
result of any of the events or circumstances described in paragraph (ii) above)
and termination of any Suspension Period.
d. The Company shall use its reasonable best
efforts to obtain: (i) the withdrawal of any order suspending the effectiveness
of any Shelf Registration Statement and the use of any related Prospectus; and
(ii) the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Transfer Restricted Securities for offer or sale in
any jurisdiction in which they have been qualified for sale, in each case at the
earliest possible time, and shall provide notice to each Notice Holder and the
Buyers of the withdrawal of any such orders or suspensions.
e. The Company shall promptly furnish to the
Buyers (and, upon written request from any Notice Holder to such Notice Holder),
without charge, at least one copy of any Shelf Registration Statement and any
post-effective amendment thereto, excluding all documents incorporated or deemed
to be incorporated therein by reference and all exhibits thereto.
f. The Company shall promptly furnish to the
Legal Counsel (i) copies of any correspondence from the SEC or the staff of the
SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the SEC, one
copy of any Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein by
reference, if requested by an Investor, and all exhibits and (iii) upon the
effectiveness of any Registration Statement, one copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto.
g. The Company shall, at the Effective Date,
promptly provide each Holder a copy of the Prospectus included in the Shelf
Registration Statement at the time of the Effective Date and during the Shelf
Registration Period, promptly deliver to the Buyers and each Notice Holder,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in any Shelf Registration Statement, and any amendment or
supplement thereto, as such person may reasonably request and except as provided
in Sections 2(d) and 3(r) hereof; and the Company hereby consents to the use of
the Prospectus and any amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the
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Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto.
h. The Company shall submit to the SEC, within
two (2) Business Days after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the staff
has no further comments on a particular Registration Statement, as the case may
be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than 48 hours after the submission of such request.
i. Prior to any offering of Transfer Restricted
Securities pursuant to any Shelf Registration Statement, the Company shall
register or qualify or cooperate with the Notice Holders and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Transfer Restricted Securities for
offer and sale, under the securities or blue sky laws of such jurisdictions
within the United States as any such Notice Holders reasonably request and shall
maintain such qualification in effect so long as required and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Transfer Restricted Securities covered by such Shelf
Registration Statement; provided, however, that the Company will not be required
to: (i) qualify generally to do business as a foreign corporation or as a dealer
in securities in any jurisdiction where it is not then so qualified or; (ii)
take any action which would subject it to service of process or taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then
so subject.
j. If the Transfer Restricted Securities are in
certificated form, the Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Securities sold pursuant to any Shelf Registration Statement free of
any restrictive legends and, with respect of any Notes, in such denominations
permitted by the Indenture and registered in such names as Holders may request
at least two (2) Business Days prior to settlement of sales of Transfer
Restricted Securities pursuant to such Shelf Registration Statement.
k. Subject to the exceptions contained in (i)
and (ii) of Section 3(h) above, the Company shall use its reasonable best
efforts to cause the Transfer Restricted Securities covered by the applicable
Shelf Registration Statement to be registered with or approved by such other
federal, state and local governmental agencies or authorities, and
self-regulatory organizations in the United States as may be necessary to enable
the Holders to consummate the disposition of such Transfer Restricted Securities
as contemplated by the Shelf Registration Statement; without limitation to the
foregoing, the Company shall provide all such information as may be required by
the NASD in connection with the offering under the Shelf Registration Statement
of the Transfer Restricted Securities (including, without limitation, such as
may be required by NASD Rule 2710 or 2720), and shall cooperate with each Holder
in connection with any filings required to be made with the NASD by such Holder
in that regard.
l. Upon the occurrence of any event described
in Section 3(c)(iv) or 3(c)(v) hereof, the Company shall promptly prepare and
file with the SEC a post-effective amendment to any Shelf Registration
Statement, or an amendment or supplement to the related Prospectus, or any
document incorporated therein by reference, or file a document which is
11
incorporated or deemed to be incorporated by reference in such Shelf
Registration Statement or Prospectus, as the case may be, so that, as thereafter
delivered to purchasers of the Transfer Restricted Securities included therein,
the Shelf Registration Statement and the Prospectus, in each case as then
amended or supplemented, will not include an untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary 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 and, in
the case of a post-effective amendment, use its reasonable best efforts to cause
it to become effective as promptly as practicable; provided that the Company's
obligations under this paragraph (k) shall be suspended if the Company has
suspended the use of the Prospectus in accordance with Section 2(d) hereof and
given notice of such suspension to Notice Holders, it being understood that the
Company's obligations under this Section 3(k) shall be automatically reinstated
at the end of such Suspension Period.
m. The Company shall provide, prior to the
effective date of any Shelf Registration Statement hereunder, a CUSIP number for
the Transfer Restricted Securities registered under such Shelf Registration
Statement.
n. The Company shall use its reasonable best
efforts to comply with all applicable rules and regulations of the SEC and shall
make generally available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the 1933 Act and Rule 158
promulgated by the SEC thereunder (or any similar rule promulgated under the
0000 Xxx) for a 12-month period commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of any Shelf
Registration Statement or each post-effective amendment to any Shelf
Registration Statement, which such statements shall be made available no later
than 45 days after the end of the 12-month period or 90 days after the end of
the 12-month period, if the 12-month period coincides with the fiscal year of
the Company.
o. The Company shall use its reasonable best
efforts to cause the Indenture to be qualified under the Trust Indenture Act (as
defined in the Indenture) not later than the effective date of the first Shelf
Registration Statement.
p. The Company shall cause all shares of Common
Stock issuable upon conversion of the Notes to be reserved for listing on each
securities exchange or quotation system on which the Common Stock is then listed
no later than the date the applicable Shelf Registration Statement is declared
effective and, shall cause all Common Stock to be so listed when issued, and, in
connection therewith, to make such filings as may be required under the 1934 Act
and to have such filings declared effective as and when required thereunder.
q. The Company may require each Notice Holder
of Transfer Restricted Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company such information regarding the Notice Holder
and the distribution of such Transfer Restricted Securities sought by the Notice
and Questionnaire and such additional information as may, from time to time, be
required by the 1933 Act and/or the SEC or any other federal or state
governmental authority, and the obligations of the Company to any Notice Holder
under this Agreement shall be expressly conditioned on the compliance of such
Notice Holder with such request.
12
r. If reasonably requested in writing in
connection with any disposition of Transfer Restricted Securities pursuant to a
Shelf Registration Statement, make reasonably available for inspection during
normal business hours by a representative for the Notice Holders of such
Transfer Restricted Securities and any broker-dealers, attorneys and accountants
retained by such Notice Holders, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate executive officers, directors and
designated employees of the Company and its subsidiaries to make reasonably
available for inspection during normal business hours all relevant information
reasonably requested by such representative for the Notice Holders or any such
broker-dealers, attorneys or accountants in connection with such disposition, in
each case as is customary for similar "due diligence" examinations; provided,
however, that any information that is designated by the Company, in good faith,
as confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless disclosure thereof is made in connection
with a court, administrative or regulatory proceeding or required by law, or
such information has become available to the public generally through the
Company or through a third party without an accompanying obligation of
confidentiality.
s. Each Notice Holder agrees that, upon receipt
of notice of the happening of an event described in Sections 3(c)(ii) through
and including 3(c)(vi), it shall forthwith discontinue (and shall cause its
agents and representatives to discontinue) disposition of Transfer Restricted
Securities and will not resume disposition of Transfer Restricted Securities
until such Holder has received copies of an amended or supplemented Prospectus
contemplated by Section 3(k) hereof, or until such Notice Holder is advised in
writing by the Company that the use of the Prospectus may be resumed or that the
relevant Suspension Period has been terminated, as the case may be, provided
that the foregoing shall not prevent the sale, transfer or other disposition of
Transfer Restricted Securities by a Holder in a transaction which is exempt
from, or not subject to, the registration requirements of the 1933 Act, so long
as such Holder does not and is not required to deliver the applicable Prospectus
or Shelf Registration Statement in connection with such sale, transfer or other
disposition, as the case may be; and provided, further, that the provisions of
this Section 3(q) shall not prevent the occurrence of a Registration Default or
otherwise limit the obligation of the Company to pay Registration Default
Payments.
t. Each Notice Holder shall promptly notify the
Company of any inaccuracies or changes in the information requiring an amendment
to the applicable Shelf Registration Statement or Prospectus provided in such
Notice Holder's Notice and Questionnaire that may occur subsequent to the date
thereof at any time while the Shelf Registration Statement remains effective.
u. The Company shall use its reasonable best
efforts to take all other steps necessary to effect the registration of the
Notes covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses.
The Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 2 and 3 hereof
and shall reimburse the Holders for the reasonable fees and disbursements of the
Legal Counsel. Such fees and expenses shall
13
include, without limitation: (i) all registration and filing fees and expenses
(including filings made with the NASD); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing of 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; (iv) all fees and
disbursements of counsel to the Company; (v) 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 (vi) all fees and disbursements of independent
certified 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. Notwithstanding the provisions of this
Section 4, each Holder shall bear the expense of any broker's commission, agency
fee and underwriter's discount or commission, if any, relating to the sale or
disposition of such Holder's Transfer Restricted Securities pursuant to a Shelf
Registration Statement.
5. Indemnification and Contribution.
a. The Company shall indemnify and hold
harmless each Holder of Transfer Restricted Securities covered by any Shelf
Registration Statement, its directors, officers, partners, members and employees
and each Person, if any, who controls any such Holder within the meaning of
either the 1933 Act or the 1934 Act (collectively referred to for purposes of
this Section 5 as a "HOLDER") against any losses, claims, damages or
liabilities, joint or several, or actions in respect thereof, to which any of
them may become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement, or in any Prospectus, or any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein (in the case of any Prospectus, in the light of the circumstances under
which they were made) not misleading, and will reimburse each such party for any
legal or other expenses reasonably incurred by such party in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that: (i) the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon Holder Information; (ii) with respect to any untrue
statement or omission of material fact made in any Shelf Registration Statement,
or in any Prospectus, the indemnity agreement contained in this Section 5(a)
shall not inure to the benefit of a Holder from whom the Person asserting any
such loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such Holder occurs
under the circumstance where it shall have been established that: (w) the
Company had previously furnished copies of the Prospectus, and any amendments
and supplements thereto, to such Holder; (x) delivery of the Prospectus, and any
amendment or supplements thereto, was required by the 1933 Act to be made to
such Person; (y) the untrue statement or omission of a material fact contained
in the Prospectus was corrected in amendments or supplements thereto; and (z)
there was not received by such Person, at or prior to the written confirmation
of the sale of such securities to such Person, a copy of such amendments or
supplements to the Prospectus; and (iii) the indemnification provisions of this
Section shall not apply to amounts paid in settlement of any loss, claim, damage
or liability if such settlement
14
is effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld or delayed. This indemnity agreement will be
in addition to any liability that the Company may otherwise have. This indemnity
agreement will not apply to any loss, damage, expense, liability or claim
arising from an offer or sale, occurring during a Suspension Period, of Transfer
Restricted Securities by a Notice Holder who has previously received notice from
the Company of the commencement of the Suspension Period pursuant to Section
3(c)(vii).
b. Each Holder, severally and not jointly,
agrees to indemnify and hold harmless the Company, each of its directors and
officers and each Person, if any, who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, to the same extent as the foregoing
indemnity from the Company to the Holders and shall reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any loss, claim,
damage, liability or action, but only with reference to Holder Information
supplied by such Holder. In no event shall any Holder, its directors, officers,
partners, members or employees or any Person, if any, who controls such Holder
be liable or responsible for any amount in excess of the amount by which the
total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Shelf Registration Statement exceeds: (i)
the amount paid by such Holder for such Transfer Restricted Securities; plus
(ii) the amount of any damages that such Holder, its directors, officers or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. This
indemnity agreement will be in addition to any liability that such Holder may
otherwise have.
c. Promptly after receipt by an indemnified
party under this Section 5 of notice of any claim or the commencement of any
action or proceeding (including any governmental investigation), such
indemnified party will, if a claim for indemnification in respect thereof is to
be made against the indemnifying party under Section 5(a) or 5(b) hereof, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. In case any such action or proceeding is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein (jointly
with any other indemnifying party similarly notified), and to the extent that it
may elect, by written notice, delivered to such indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants (including any impleaded parties) in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which 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
defend such action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of its election
so to appoint counsel to defend such action and approval by the indemnified
party of such counsel, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless: (i) the
15
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 expense of more than one separate
counsel (in addition to any local counsel), approved by the Holders in the case
of paragraph (a) of this Section 5, representing the indemnified parties under
such paragraph (a) who are parties to such action); (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice or
commencement of the action; (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; or (iv) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. Subject to the provisions
of the immediately following sentence, no indemnifying party shall be liable for
any settlement, compromise or the consent to the entry of judgment in connection
with any such action effected without its written consent, but if settled with
its written consent or if there be a final judgment for the plaintiff in any
such action other than a judgment entered with the consent of such indemnified
party, the indemnifying party shall indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for reasonable fees and
expenses of counsel as contemplated by this Section 5(c) and to which it would
be entitled under Section 5(a) or 5(b) hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if: (x) such settlement is entered into more than 60 days
after receipt by such indemnifying party of such request for reimbursement, (y)
such indemnifying party shall have received notice of the terms of such
settlement at least 45 days prior to such settlement being entered into and (z)
such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
d. In the event that the indemnity provided in
paragraph (a) or (b) of this Section 5 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, each indemnifying party shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "LOSSES") to which the indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company from the sale of the Notes, on the one hand, and a
Holder with respect to the sale by such Holder of Notes or Common Stock, on the
other hand; provided, however, that in no case shall an indemnifying party that
is a Holder be responsible for any amount in excess of the total price at which
the Transfer Restricted Securities are sold by such Holder to a purchaser. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and such Holder shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of such Holder on the other in
connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on
16
the one hand and such Holder on the other shall be deemed to be in the same
respective proportions as the total net proceeds from the sale of the Notes
(before deducting expenses) received by or on behalf of the Company, on the one
hand, and the total proceeds received by such Holder with respect to its sale of
Transfer Restricted Securities under the Shelf Registration Statement, on the
other hand, bear to the total gross proceeds from the sale of the Notes.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or relates to Holder Information supplied by such
Holder, on the other, the intent of the parties and their relative knowledge,
information and opportunity to correct or prevent such untrue statement or
omission. The parties agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any Person with respect to claims arising directly out of or relating to such
fraudulent misrepresentation who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5(d), each Person who controls
such Holder within the meaning of either the 1933 Act or the 1934 Act shall have
the same rights to contribution as such Holder, and each Person who controls the
Company within the meaning of either the 1933 Act or the 1934 Act shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
e. The remedies provided for in this Section 5
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
f. The provisions of this Section 5 will remain
in full force and effect regardless of (i) the termination of this Agreement,
(ii) any investigation made by or on behalf of any Holder, any underwriter or
the Company or any of the officers, directors or controlling Persons referred to
in Section 5 hereof and (iii) the sale by a Holder of Transfer Restricted
Securities covered by a Shelf Registration Statement.
g. Rules 144 and 144A. The Company covenants
that it shall use its reasonable best efforts to file the reports required to be
filed by it under the 1933 Act and the 1934 Act in a timely manner so long as
the Transfer Restricted Securities remain outstanding. If at any time the
Company is not required to file such reports, it will, upon request of any
Holder or beneficial owner of Transfer Restricted Securities, make available
such information necessary to permit sales pursuant to Rule 144A. The Company
further covenants that, for as long as any Transfer Restricted Securities remain
outstanding, it will take such further action as any Holder of Transfer
Restricted Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Transfer Restricted Securities
without registration under the 1933 Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A. Upon the written request of any Holder of
Transfer Restricted Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
17
6. Miscellaneous.
a. 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 herein or otherwise
conflicts with the provisions hereof. In addition, the Company shall not grant
to any of its Noteholders (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.
b. Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company consents in writing
and the Company has obtained the written consent of at least the majority of the
Holders of the then outstanding Transfer Restricted Securities; provided that
with respect to any matter that directly or indirectly affects the rights of the
Buyers hereunder, the Company shall obtain the written consent of the Buyers
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 departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Transfer
Restricted Securities are being sold pursuant to a Shelf Registration Statement
and that does not directly or indirectly affect the rights of other Holders may
be given by the Majority Holders.
c. Notices. All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to the Buyers, initially at
their address set forth in the Securities Purchase Agreement;
(ii) if to any other Holder, at the most
current address of such Holder maintained by the Registrar under the Indenture
or the registrar of the Common Stock (provided that while the Notes or the
Common Stock are in book-entry form, notice to the Trustee shall serve as notice
to the Holders), or, in the case of the Notice Holder, the address set forth in
its Notice and Questionnaire; and
(iii) if to the Company, to:
Vector Group Ltd.
000 X.X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
18
With a copy (for informational purposes
only) to:
XxXxxxxxx Will & Xxxxx LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail or telecopier.
The Buyers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
d. 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 the need for an express assignment or any
consent by the Company thereto, subsequent Holders. The Company hereby shall
extend the benefits of this Agreement to any Holder and underwriter and any such
Holder and underwriter may specifically enforce the provisions of this Agreement
as if an original party hereto. In the event that any other Person shall succeed
to the Company under the Indenture, then such successor shall enter into an
agreement, in form and substance reasonably satisfactory to the Buyers, whereby
such successor shall assume all of the Company's obligations under this
Agreement.
e. Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, 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;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
f. Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
g. Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of New York, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is
19
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
h. Severability. In the event that any one of
more of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
i. Notes Held by the Company, Etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Notes or the shares of Common Stock issuable upon conversion thereof is required
hereunder, Notes or the shares of Common Stock issued upon conversion thereof
held by the Company or its Affiliates (other than subsequent Holders of Notes or
the Common Stock issued upon conversion thereof if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Notes) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
j. Termination. This Agreement and the
obligations of the parties hereunder shall terminate upon the end of the Shelf
Registration Period, except for any liabilities or obligations under Section
2(e), 4 or 5.
k. Independent Nature of Buyers' Obligations
and Rights. The obligations of each Buyer under any Transaction Document are
several and not joint with the obligations of any other Buyer, and no Buyer
shall be responsible in any way for the performance of the obligations of any
other Buyer under any Transaction Document. Nothing contained herein or in any
other Transaction Document, and no action taken by any Buyer pursuant hereto or
thereto, shall be deemed to constitute the Buyers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Buyers are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the Transaction
Documents. Each Buyer confirms that it has independently participated in the
negotiation of the transaction contemplated hereby with the advice of its own
counsel and advisors. Each Buyer shall be entitled to independently protect and
enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of any other
20
Transaction Documents, and it shall not be necessary for any other Buyer to be
joined as an additional party in any proceeding for such purpose.
21
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
COMPANY:
VECTOR GROUP LTD.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYERS:
HIGHBRIDGE INTERNATIONAL LLC
By: HIGHBRIDGE CAPITAL MANAGEMENT, LLC
By: /s/ Xxxx X. Chill
---------------------------------
Name: Xxxx X. Chill
Title: Managing Director
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
JEFFERIES PARAGON MASTER FUND, LTD.
By: JEFFERIES ASSET MANAGEMENT, LLC, as Manager
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BASSO CAPITAL
By:
------------------------------------------
Name:
Title:
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
CAMDEN ASSET MANAGEMENT
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
EBF & ASSOCIATES, LP
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
CANYON PARTNERS INC.
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, each Buyer and the Company have caused
their respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
XXXXXXXX INVESTMENT ADVISERS
By:
----------------------------------
Name:
Title:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
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(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Transfer Restricted Securities Listed in
Item 3 below are held:
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(c) Full Legal Name of DTC participant (if applicable and if not
the same as (b) above) through which Transfer Restricted
Securities listed in Item 3 below are held:
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2. Address for Notices to Selling Securityholder:
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Telephone:
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Fax:
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Contact Person:
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3. Beneficial Ownership of Transfer Restricted Securities:
(a) Type and Principal Amount of Transfer Restricted Securities
beneficially owned:
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(b) CUSIP No(s). of such Transfer Restricted Securities
beneficially owned:
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1
4. Beneficial Ownership of Other Securities of the Company Owned by the
Selling Securityholder.
Except as set forth below in this Item 4, the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Transfer Restricted Securities listed above in Item 3.
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
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(b) CUSIP No(s). of such Other Securities beneficially owned:
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5. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) has held any
position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
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6. Broker-Dealers and their Affiliates
(a) Is the Selling Securityholder a broker-dealer or an affiliate
of a broker-dealer:
Yes ____ No ____
If so, please answer the remaining question in this section.
(i) Please advise whether the notes were received by the Selling
Securityholder as compensation for investment banking services
or as investment shares, and if so please describe the
circumstances.
Note that in general we may be required to identify any registered broker-dealer
as an underwriter in the prospectus.
2
(ii) Except as set forth below, if the Selling Securityholder is a
registered broker-dealer, the Selling Securityholder does not plan to
make a market in the Transfer Restricted Securities. If the Selling
Securityholder plans to make a market in the Transfer Restricted
Securities, please indicate whether the Selling Securityholder plans to
use the prospectus relating to the Transfer Restricted Securities as a
market-making prospectus.
(b) Affiliation with Broker-Dealers
Is the Selling Securityholder an affiliate(1) of a registered
broker-dealer?
Yes ____ No ____
If so, please answer the remaining question in this section.
(i) Please describe the affiliation between the Selling
Securityholder and any registered broker-dealer.
(ii) If the notes were purchased by the Selling Securityholder
other than in the ordinary course of business, please describe
the circumstances.
(iii) Please advise whether the notes were received by the Selling
Securityholder as compensation for investment banking services
or as investment shares, and if so please describe the
circumstances.
(iv) If the Selling Securityholder, at the time of its purchase of
Transfer Restricted Securities, had any agreements or
understandings, directly or indirectly, with any person to
distribute the Transfer Restricted Securities, please describe
such agreements or undertakings.
Note that if the Selling Securityholder is an affiliate of a
broker-dealer and did not purchase its notes in the ordinary course of
business or at the time of the purchase had any agreements or
understandings, directly or indirectly, to distribute the securities,
we may be required to identify the Selling Securityholder as an
underwriter in the prospectus.
(c) Beneficial Ownership by Natural Persons:
If the Selling Securityholder is an entity, does any natural person
having voting or investing power over the Transfer Restricted Securities held by
the Selling Securityholder?(2)
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(1) An "affiliate" of a specified person or entity means a person or entity that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person or entity specified.
(2) Please answer "Yes" if any natural person, directly or indirectly, through
any contract, arrangement, understanding, relationship, or otherwise has or
shares: (a) voting power which includes the power to
3
If so, please state the person's or persons' name(s):
7. Beneficial Ownership by Natural Persons or by a Board or Committee
Is the Selling Securityholder a reporting entity with the Securities
and Exchange Commission?
If the Selling Securityholder is a majority owned subsidiary of a
reporting entity, identify the majority stockholder that is a reporting
entity.
Yes ____ No ____
If No, please answer the remaining questions in this section.
(i) Please name the natural person or person(s) having voting
and/or investment control over the Selling Securityholder.(3)
(ii) If the voting and/or investment control over the Selling
Securityholder is held by board or committee, please state the
name of the natural person or person(s) on such board or
committee.
8. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities
listed above in Item 3 pursuant to the Shelf Registration Statement
only as follows (if at all): Such Transfer Restricted Securities may be
sold from time to time directly by the undersigned or, alternatively,
through underwriters, broker-dealers or agents. If the Transfer
Restricted Securities are sold through underwriters, broker-dealers or
agents, the Selling Securityholder will be responsible for underwriting
discounts or commissions or agents' commissions. Such Transfer
Restricted Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale or at negotiated prices. These
sales may be effected in transactions, which may involve crosses or
block transactions:
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vote, or to direct the voting of, such security; and/or, (b) investment power
which includes the power to dispose, or to direct the disposition of, the
Transfer Restricted Securities held by the Selling Securityholder.
(3) Please include any natural person that, directly or indirectly, through any
contract, arrangement, understanding, relationship, or otherwise has or shares:
(a) voting power which includes the power to vote, or to direct the voting of,
such security; and/or, (b) investment power which includes the power to dispose,
or to direct the disposition of, the Transfer Restricted Securities held by the
Selling Securityholder.
4
- on any national securities exchange or quotation service on
which the securities may be listed or quoted at the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on these exchanges or systems
or in the over-the-counter market;
- through the writing of options, whether such options are
listed on an options exchange or otherwise;
- in ordinary brokerage transactions and transactions in which
the broker-dealer solicits purchasers;
- in block trades in which the broker-dealer will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
- in purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- in an exchange distribution in accordance with the rules of
the applicable exchange;
- in privately negotiated transactions;
- in short sales;
- in sales pursuant to Rule 144;
- in which broker-dealers may agree with the selling
securityholders to sell a specified number of such shares at a
stipulated price per share;
- in a combination of any such methods of sale; and
- in any other method permitted pursuant to applicable law.
State any exceptions here:
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Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the prior
written agreement of the Company.
The undersigned acknowledges its obligation to comply with the provisions of the
1934 Act and the rules thereunder relating to stock manipulation, particularly
Regulation M thereunder (or any successor rules or regulations), in connection
with any offering of Transfer Restricted Securities
5
pursuant to the Registration Rights Agreement. The undersigned agrees that
neither it nor any person acting on its behalf will engage in any transaction in
violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed under
certain circumstances to indemnify the Selling Securityholder against certain
liabilities.
In accordance with the undersigned's obligation under the Registration Rights
Agreement to provide such information as may be required by law for inclusion in
the Shelf Registration Statement, the undersigned shall promptly notify the
Company of any inaccuracies or changes in the information provided herein that
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains effective.
All notices hereunder and pursuant to the Registration Rights Agreement shall be
made in writing by hand delivery, first class mail or air courier guaranteeing
overnight delivery to the address set forth below.
By signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Shelf Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Shelf Registration
Statement and the related prospectus.
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding on, shall
inure to the benefit of and shall be enforceable by the respective successors,
heirs, personal representatives and assigns of the Company and the Selling
Securityholder with respect to the Transfer Restricted Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: Beneficial Owner:
-------------------- --------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
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PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
VECTOR GROUP LTD.
Vector Group Ltd.
6
000 X.X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
7
