Automatic Shelf Registration Statement The Company meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the SEC an automatic shelf registration statement, as defined in Rule 405 under the Securities Act (“Rule 405”) (the file number of which is set forth in Schedule I hereto) on Form S-3, including a related Base Prospectus, for the registration of the offering and sale of the Securities under the Securities Act. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing; and no stop order suspending the effectiveness of the Registration Statement or notice objecting to its use has been issued by the SEC and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the knowledge of the Company, threatened by the SEC against the Company or related to the Offering of the Securities. The Company may have filed with the SEC, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), a preliminary prospectus supplement relating to the Securities, which has previously been furnished to you. The Company will file with the SEC a final prospectus supplement relating to the Securities in accordance with Rule 424(b) after the Execution Time. As filed, such final prospectus supplement shall contain all information required by the Securities Act and the rules thereunder, and, except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and the Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act. The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
Suspension of Registration Statement (a) The Company shall immediately notify counsel of the Holders of, and confirm in writing, the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement with respect to such Holder's Registrable Shares or the initiation of any proceedings for that purpose. The Company shall use its best efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement as soon as practicable.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the Company's obligation under this Agreement to cause a Registration Statement and any filings with any state securities commission to become effective or to amend or supplement a Registration Statement or Prospectus included therein shall be suspended (i) in the event and during such period as unforeseen circumstances exist that would require additional disclosure of material information that would make it impractical or unadvisable, in the determination of the Board of Directors of the Company, to cause the Registration Statement or such filings to become effective or to amend or supplement the Registration Statement or Prospectus included therein, or (ii) the effectiveness of the Registration Statement or such filings or an amendment of or supplement to the Registration Statement or Prospectus included therein could, in the good faith determination of the Board of Directors of the Company, interfere with a proposed financing, acquisition or reorganization, the conduct or outcome of any litigation or would require the disclosure of information that the Company has a bona fide purpose for preserving as confidential (each, a "Suspension Event"); provided, however, that, unless otherwise required by applicable law, there shall not be more than three (3) Suspension Events in any 12-month period; and provided further that no Suspension Event shall exceed sixty (60) days. The Company shall notify counsel to the Holders in writing of the existence and, to the extent possible under applicable law, nature of any Suspension Event.
(c) Each Holder agrees that, following the effectiveness of any Registration Statement relating to the Registrable Shares of such Holder, such Holder will not effect any sales of the Registrable Shares pursuant to such Registration Statement or any filings with any state securities commissions at any time after such Holder has received written notice from the Company to suspend sales as a result of the occurrence or existence of any Suspension Event or so that the Company may correct or update such Registration Statement or filing in accordance with Section 2(f). Such Holder may recommence effecting sales of the Registrable Shares pursuant to such Registration Statement or filing upon further notice to such effect from the Company which notice shall be given by the Company promptly after the conclusion of any such Suspension Event.
Resale Shelf Registration Rights (a) Subject to any contractual lock-up applicable to any Holder, promptly following delivery by a Holder of an Exchange Notice pursuant to the Amended and Restated Limited Partnership Agreement, together with a written certification from such Holder, in form and substance reasonably satisfactory to the Company’s legal counsel, certifying to such Holder’s compliance with the factual requirements of Rule 144 under the Securities Act, the Company shall use its reasonable best efforts to (i) cause the Company’s legal counsel to deliver to the transfer agent for the Common Stock an opinion of counsel in such form as the transfer agent deems sufficient to cause any shares of Common Stock issuable pursuant to such Exchange Notice to be issued without legends restricting the transfer of such shares of Common Stock without the registration of such shares of Common Stock under the Securities Act prior to such transfer and (ii) deliver to such Holder shares of Common Stock in book-entry form free of any legend restricting the transfer of such shares of Common Stock without the registration of such shares of Common Stock under the Securities Act prior to such transfer.
(b) If the Company is unable to deliver shares of Common Stock to the applicable Holder free of restrictive legends as contemplated by Section 2.1(a), the Company shall use its reasonable best efforts to file within 30 days following delivery by such Holder of an Exchange Notice, and cause to be declared effective as promptly as possible thereafter, a Registration Statement on Form S-3 (or any successor form thereto providing for “short-form” registration) in accordance with Rule 415 under the Securities Act (such registration statement, a “Shelf Registration Statement”) or one or more prospectus supplements or post-effective amendments to an already effective Shelf Registration Statement to register the offer and sale of all Registrable Securities covered by such Exchange Notice through ordinary course brokerage or dealer transactions not involving an underwritten public offering; provided that if the Company has already filed a Shelf Registration Statement pursuant to Section 2.1(c) or 2.1(d) that is effective, the Company shall file any prospectus supplement with respect to all Registrable Securities covered by such Exchange Notice within five (5) days of receipt of the information reasonably required from the applicable Holder to be included in such prospectus supplement.
(c) No later than 30 days following the one year anniversary of this Agreement, the Company shall use its reasonable best efforts to file a new, or amend an existing, Shelf Registration Statement to permit the registration of all Registrable Securities pursuant to this Agreement, and to cause such Shelf Registration Statement to be declared effective as promptly as possible thereafter. Any Shelf Registration Statement or amendment to an existing Shelf Registration Statement filed pursuant to this Section 2.1(c) shall include, and may be limited to, such disclosures as are required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that all of the Holders may be added to such Shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(d) If the Company files any Shelf Registration Statement for the benefit of one or more Holders, the Company shall include in such Shelf Registration Statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that all of the Holders may be added to such Shelf Registration Statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
(e) To the extent the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”) at the time any Shelf Registration Statement is filed by the Company pursuant to Section 2.1(b), the Company shall cause such Shelf Registration Statement to be an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) on Form S-3. The Company shall use its commercially reasonable efforts to remain a WKSI (and to not become, and to seek relief from any determination by the SEC that it is, an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which the Registrable Securities remain Registrable Securities. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are to be sold in compliance with the SEC rules. If any automatic shelf registration statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities that remain unsold. If at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, the Company shall use its reasonable best efforts to refile, and cause to be declared effective, the applicable Shelf Registration Statement on Form S-3 (or any successor form thereto providing for “short-form” registration).
(f) Notwithstanding the foregoing, if the Chief Executive Officer of the Company, in consultation with the Company’s lead independent director, in good faith determines that filing a Shelf Registration Statement or prospectus supplement, or causing a Shelf Registration Statement or post-effective amendment to any effective Shelf Registration Statement to become effective, pursuant to this Agreement would (i) materially impede, delay or interfere with any material financing, offer and sale of securities, acquisition, merger, tender offer, business combination, corporate reorganization or other similar significant transaction involving the Company, or (ii) require the Company to disclose material, non-public information that would otherwise not be required to be disclosed under applicable law and that the Company has a bona fide business purpose for preserving as confidential, then the Company may defer its obligation to pursue such filing and effectiveness pursuant to this Agreement for not more than 60 consecutive days following (i) delivery by a Holder of an Exchange Notice pursuant to the Amended and Restated Limited Partnership Agreement or (ii) in the case of a Shelf Registration Statement to be filed pursuant to Section 2.1(c), the end of such 30-day period.
Subsequent Shelf Registration If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration Statement”) registering the resale of all Registrable Securities (determined as of two (2) business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration Statement shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration Statement continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration Statement shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration Statement shall be on another appropriate form. The Company’s obligation under this Section 2.1.2, shall, for the avoidance of doubt, be subject to Section 3.4.
Withdrawal of Stop Orders; Subsequent Shelf Registrations If the Initial Shelf Registration or any Subsequent Shelf Registration ceases to be effective for any reason at any time during the Effectiveness Period (other than because of the sale of all of the Securities registered thereunder), the Issuer shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall file an additional Shelf Registration Statement pursuant to Rule 415 covering all of the Registrable Securities covered by and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a “Subsequent Shelf Registration”). If a Subsequent Shelf Registration is filed, the Issuer shall use its reasonable best efforts to cause the Subsequent Shelf Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such subsequent Shelf Registration continuously effective for a period equal to the number of days in the Effectiveness Period less the aggregate number of days during which the Initial Shelf Registration or any Subsequent Shelf Registration was previously continuously effective. As used herein the term “Shelf Registration” means the Initial Shelf Registration and any Subsequent Shelf Registration.
Effectiveness of Automatic Shelf Registration Statement The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date of this Agreement.
Subsequent Shelf Registrations If the Initial Shelf Registration or any Subsequent Shelf Registration (as defined below) ceases to be effective for any reason at any time during the Effectiveness Period, the Issuers and the Guarantors shall use their commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within 60 days of such cessation of effectiveness amend such Shelf Registration in a manner to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional “shelf” Registration Statement pursuant to Rule 415 covering all of the Registrable Notes (a “Subsequent Shelf Registration”). If a Subsequent Shelf Registration is filed, the Issuers and the Guarantors shall use their commercially reasonable to cause the Subsequent Shelf Registration to be declared effective as soon as practicable after such filing and to keep such Subsequent Shelf Registration continuously effective for the remainder of the Effectiveness Period (except that clause (ii) of the definition of Effectiveness Period for such purposes shall mean the date when all of the Notes have been sold under a Shelf Registration Statement). As used herein the term “Shelf Registration” means the Initial Shelf Registration and any Subsequent Shelf Registrations.
Notice of Inability to Use Automatic Shelf Registration Statement Form If at any time when Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment to the Registration Statement on the proper form relating to the Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such new registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
Provision by Holders of Certain Information in Connection with the Shelf Registration Statement No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
Shelf Registration Statement In connection with any Shelf Registration Statement, each of the Issuers and the Guarantors shall comply with all the provisions of Section 6(c) hereof and shall use commercially reasonable efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and pursuant thereto each of the Issuers and the Guarantors will as expeditiously as possible prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof.
