Form S-3 Registration Statement. (a) Stratos shall use its best efforts to cause the shares of Stratos Common Stock issued in the Merger (the "Registrable Securities") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty (30) days following the Closing Date, and shall use its best efforts to cause to become effective no later than sixty (60) days thereafter, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; provided, however, that each holder of Registrable Securities ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Stratos pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten. (b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a), if Stratos determines that there exists material nonpublic information about Stratos which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of Stratos, would be detrimental to Stratos. (c) Subject to the limitations of Section 6.10(b), Stratos shall: (i) prepare and file the Registration Statement with the SEC in accordance with Section 6.10(a) with respect to the Registrable Securities and shall use its best efforts to cause the Registration Statement to become effective as promptly as practicable after filing and to keep the Registration Statement effective until one (1) year after the Effective Time; (ii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary, and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities proposed to be registered in the Registration Statement until one (1) year after the Effective Time; and (iii) furnish to each Holder such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with the requirements of the Securities Act, and such other documents, as each Holder may reasonably request in order to effect the offering and sale of the Registrable Securities to be offered and sold. (d) Notwithstanding any other provision of this Section 6.10, Stratos shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities pursuant to the Registration Statement whenever, and for so long as, in the reasonable judgment of Stratos in good faith after consultation with counsel, there is or may be in existence material undisclosed information or events with respect to Stratos (the "Suspension Right"). In the event Stratos exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Stratos after consultation with counsel. Stratos will use all reasonable efforts to limit the length of the suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension. (e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions an respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliance, and Stratos will reimburse each such Holder, each of its officers and directors, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use therein. (f) It shall be a condition to Stratos' obligations hereunder to register the Registrable Securities of any Holder that such Holder agrees to indemnify Stratos, each of Stratos' directors and officers, each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Stratos, such other Holders, directors, officers, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use therein. (g) Each party entitled to indemnification under Section 6.10(e) or 6.10(f) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Stratos Lightwave Inc)
Form S-3 Registration Statement. (a) Stratos Subject to Parent’s timely receipt of the Required Financial Statements, Parent shall prepare and file with the SEC, within ten (10) days following the closing, a registration statement on Form S‑3 (the “Form S‑3”) relating to the shares of Parent Common Stock issuable with respect to the Merger pursuant to the terms and conditions of the Registration Rights Agreement.
(b) Subject to Parent’s timely receipt of the Required Financial Statements, Parent agrees to use its reasonable best efforts to cause the shares of Stratos Common Stock issued Form S‑3 to become or be declared effective by the SEC as promptly as practicable after the filing thereof, but in any event, in the Merger case where the Form S‑3 is not subject to review by the SEC, such Form S‑3 shall be effective not later than the later of: (i) fifteen (15) Business Days following the "Registrable Securities"Effective Date; and (ii) five (5) Business Days following notification by the staff of the SEC that no review will be performed. In connection with the filing of any Form S‑3, but subject to be registered under Parent’s timely receipt of the Securities Act so as Required Financial Statements, Parent agrees to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file make any other filings with the SEC within thirty (30) days following the Closing Date, and shall use its best efforts required to cause to become effective no later than sixty (60) days thereafter, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; provided, however, that each holder of Registrable Securities ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent made prior to the obligations of Stratos pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a)Form S‑3, including, if Stratos determines that there exists material nonpublic information about Stratos which would be required, a Current Report on Form 8‑K with respect to the closing of the Merger and all financial statements required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of Stratos, would be detrimental to Stratosincluded therein.
(c) Subject to the limitations of Section 6.10(b), Stratos shall: (i) prepare and file the Registration Statement with the SEC in accordance with Section 6.10(a) with respect to the Registrable Securities and Parent shall use its reasonable best efforts to cause maintain the Registration Statement to become effective as promptly as practicable after filing and to keep the Registration Statement effective until one (1) year after the Effective Time; (ii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary, and to comply with the provisions effectiveness of the Securities Act with respect to Form S‑3 for the sale or other disposition of all securities proposed to be registered period described in the Registration Statement until one (1) year after the Effective Time; and (iii) furnish to each Holder such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with the requirements of the Securities Act, and such other documents, as each Holder may reasonably request in order to effect the offering and sale of the Registrable Securities to be offered and sold.
(d) Notwithstanding any other provision of this Section 6.10, Stratos shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities pursuant to the Registration Statement whenever, and for so long as, in the reasonable judgment of Stratos in good faith after consultation with counsel, there is or may be in existence material undisclosed information or events with respect to Stratos (the "Suspension Right"). In the event Stratos exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Stratos after consultation with counsel. Stratos will use all reasonable efforts to limit the length of the suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension.
(e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions an respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliance, and Stratos will reimburse each such Holder, each of its officers and directors, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use therein.
(f) It shall be a condition to Stratos' obligations hereunder to register the Registrable Securities of any Holder that such Holder agrees to indemnify Stratos, each of Stratos' directors and officers, each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Stratos, such other Holders, directors, officers, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use therein.
(g) Each party entitled to indemnification under Section 6.10(e) or 6.10(f) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be soughtRights Agreement, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together otherwise comply with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, contained in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigationRegistration Rights Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Millennial Media Inc.)
Form S-3 Registration Statement. (a) Stratos Within fourteen (14) days after the Closing Date, Purchaser shall use its best efforts to cause the shares of Stratos Common Stock issued in the Merger (the "Registrable Securities") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty (30) days following the Closing DateSEC, and shall use its best all reasonable efforts to cause to become effective no later than sixty within ninety (6090) days thereafterafter the Closing Date, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the issuance of shares of Purchaser Common Stock upon conversion of the Promissory Note (the "Registrable Securities"); provided, however, that each holder of Registrable Securities ("Holder") Seller shall provide all such information and materials to Stratos Purchaser and take all such action as may be required in order to permit Stratos Purchaser to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Stratos Purchaser pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.108.4. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a8.4(a), Stratos Purchaser shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a), 8.4(a) if Stratos Purchaser determines that there exists material nonpublic information about Stratos Purchaser which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of StratosPurchaser, would be detrimental to StratosPurchaser.
(c) Subject to the limitations of Section 6.10(b8.4(b), Stratos Purchaser shall: (i) prepare and file the Registration Statement with the SEC in accordance with Section 6.10(a8.4(a) with respect to the Registrable Securities and shall use its best all reasonable efforts to cause the Registration Statement to become effective as promptly as practicable after filing and to keep the such Registration Statement continuously effective until one the earlier to occur of: (1A) year after the Effective Timedate that all of the Registrable Securities would be eligible for resale under Rule 144(k) or a successor provision, or (B) the date on which Seller shall have sold all the Registrable Securities covered by such Registration Statement (the "Registration Period"); (ii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary, and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities proposed to be registered in necessary during the Registration Statement until one (1) year after the Effective TimePeriod; and (iii) furnish to each Holder Seller such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with the requirements of the Securities Act, and such other documents, as each Holder documents Seller may reasonably request in order to effect the offering and sale of the Registrable Securities to be offered and sold. Prior to the filing with the SEC of any Registration Statement (including any amendments thereto) and the distribution or delivery of any prospectus (including any supplements thereto), Purchaser will (A) provide draft copies thereof to the Seller and reasonably discuss such documents with the Seller (and its counsel) and (B) furnish to Seller and its legal counsel identified to the Purchaser, (i) promptly after the same is prepared and publicly distributed, filed with the Commission, or received by the Company, one copy of the registration statement, each prospectus, and each amendment or supplement thereto, and (ii) such number of copies of the prospectus and all amendments and supplements thereto and such other documents, as Seller may reasonably request in order to facilitate the disposition of the Registrable Securities. Purchaser shall promptly provide to Seller copies of all correspondence and communications received from the SEC regarding the registration of the Registrable Securities.
(d) All expenses incurred in connection with the registration of the Registrable Securities pursuant to this Section 8.4, including without limitation, all registration, filing and qualification fees, printing expenses, fees and disbursements of counsel for Purchaser and expenses of any special audits incidental to or required by such registration, shall be borne by Purchaser, except Purchaser shall not be required to pay (i) fees of legal counsel of Seller and (ii) underwriters' fees, discounts or commissions relating to the Registrable Securities.
(e) Purchaser shall use its best efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as Seller reasonably requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that Purchaser shall not be required in connection therewith or as a condition thereto to (w) make any change to its certificate of incorporation or bylaws, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 8.4(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. Purchaser shall promptly notify Seller of the receipt by Purchaser of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or "blue sky" laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(f) As promptly as practicable after becoming aware of such event or development, Purchaser shall notify Seller in writing of the happening of any event as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to Seller. Purchaser shall also promptly notify Seller in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Seller by facsimile on the same day of such effectiveness), (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, and (iii) of Purchaser's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(g) In the event the number of shares available under the Registration Statement is insufficient to cover all of the Registrable Securities, Purchaser shall amend the Registration Statement, or file a new Registration Statement, or both, so as to cover all of such Registrable Securities as soon as practicable, but in any event not later than fifteen (15) days after the necessity therefore arises. Purchaser shall use it best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof. For purposes of the foregoing provision, the number of shares available under the Registration Statement shall be deemed "insufficient to cover all of the Registrable Securities" if at any time the number of Registrable Securities issuable during the Registration Period is greater than the number of shares available for resale under such Registration Statement.
(h) Notwithstanding any other provision of this Section 6.108.4, Stratos Purchaser shall have the right at any time to require that all Holders Seller suspend further open market offers and sales of Registrable Securities pursuant to the Registration Statement whenever, and for so long as, in the reasonable judgment of Stratos Purchaser in good faith after consultation with counsel, there is or may be in existence material undisclosed information or events with respect to Stratos Purchaser (the "Suspension Right"). In the event Stratos Purchaser exercises the Suspension Right, such suspension will continue only for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos Purchaser and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Stratos Purchaser after consultation with counsel. Stratos Purchaser will use all reasonable efforts to limit the length of the any suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension.
(ei) Stratos Purchaser will indemnify each Holder, Seller and each of its officers and officers, directors and partnersstockholders, and each person controlling such Holder Seller within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions an in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.108.4, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos Purchaser of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliance, and Stratos Purchaser will reimburse each such HolderSeller, each of its officers and directors, and each person controlling such HolderSeller, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos Purchaser will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos Purchaser by such Holder Seller or controlling person and specifically for use therein.
(fj) It shall be a condition to Stratos' Purchaser's obligations hereunder to register the Registrable Securities of any Holder Seller that such Holder Seller agrees to to, and Seller hereby does agree to, (i) indemnify StratosPurchaser, each of Stratos' Purchaser's directors and officers, and each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder Purchaser within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will (ii) reimburse StratosPurchaser, such other Holders, its directors, officers, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos Purchaser by such Holder Seller specifically for use therein.
(gk) Each party entitled to indemnification under Section 6.10(e8.4(i) or 6.10(f8.4(j) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e8.4(i) or 6.8(f8.4(j) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
Appears in 1 contract
Form S-3 Registration Statement. (a) Stratos shall use its best efforts to cause the shares of Stratos Common Stock issued in the Merger (the "Registrable Securities") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty (30) days following the Closing Date, and shall use its best efforts to cause to become effective no later than sixty (60) days thereafter, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; provided, however, that each holder of Registrable Securities ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Stratos pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a), if Stratos determines that there exists material nonpublic information about Stratos which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of Stratos, would be detrimental to Stratos.
(c) Subject to the limitations of Section 6.10(b)2.2 and each Holder’s compliance with the requirements of Section 2.4, Stratos shall: the Company shall as soon as reasonably practicable, and in any event within three (3) business days after filing of the Company’s next Quarterly Report on Form 10-Q after the date of this Agreement, file a Form S-3 registration statement (the “Registration Statement”) under the Securities Act covering all Registrable Securities requested to be included in such registration by the Holders, as specified next to such Holder’s name on Schedule A hereto. Notwithstanding the foregoing sentence, if the Company determines in good faith and in its sole discretion that it would be materially detrimental to the Company and its shareholders for such Registration Statement to become effective, remain effective or be used for the sales of Registrable Securities because such action would (i) prepare and file materially interfere with a significant acquisition, disposition, corporate reorganization, or other similar transaction involving the Registration Statement Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; (iii) occur during the marketing period of an underwritten financing or similar engagement with an investment bank or a non-deal roadshow; or (iv) render the SEC in accordance Company unable to comply with Section 6.10(a) requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to the Registrable Securities and shall use its best efforts to cause Registration Statement (including without limitation, causing the Registration Statement to become effective, remain effective as promptly as practicable after filing and to keep or be used for the Registration Statement effective until one (1) year after the Effective Time; (ii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessarysales of Registrable Securities), and to comply with the provisions of the Securities Act any time periods with respect to the sale filing or other disposition effectiveness thereof shall be tolled correspondingly, for a period of all securities proposed to be registered in the not more than ninety (90) days. The Registration Statement until one (1) year after will include the Effective Time; and (iii) furnish to each plan of distribution attached hereto as Exhibit A. As long as any Holder such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with shall own Registrable Securities, the requirements of Company, at all times while it shall be a reporting company under the Securities Exchange Act, covenants to file timely (or obtain extensions in respect thereof and such other documents, as each Holder may reasonably request in order to effect the offering and sale of the Registrable Securities to be offered and sold.
(d) Notwithstanding any other provision of this Section 6.10, Stratos shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities pursuant to the Registration Statement whenever, and for so long as, in the reasonable judgment of Stratos in good faith after consultation with counsel, there is or may be in existence material undisclosed information or events with respect to Stratos (the "Suspension Right"). In the event Stratos exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Stratos after consultation with counsel. Stratos will use all reasonable efforts to limit the length of the suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension.
(e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder file within the meaning of Section 15 of the Securities Act against applicable grace period) all expenses, claims, losses, damages or liabilities (or actions an respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) to state therein a material fact reports required to be stated therein filed by the Company after the date hereof pursuant to Sections 13(a) or necessary to make the statements therein, in light 15(d) of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliance, and Stratos will reimburse each such Holder, each of its officers and directors, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use thereinAct.
(f) It shall be a condition to Stratos' obligations hereunder to register the Registrable Securities of any Holder that such Holder agrees to indemnify Stratos, each of Stratos' directors and officers, each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Stratos, such other Holders, directors, officers, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use therein.
(g) Each party entitled to indemnification under Section 6.10(e) or 6.10(f) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
Appears in 1 contract
Form S-3 Registration Statement. (a) Stratos Filing; Maintenance. Parent shall use its best commercially reasonable efforts to cause file promptly after the Effective Time, but in no event later than ten (10) business days after the Effective Time, a shelf registration statement on Form S-3 (or any successor or other appropriate form) under the Securities Act ("Registration Statement"), for the resale of the shares of Stratos Parent Common Stock to be issued at the Closing, together with all other shares of Parent Common Stock issued in the Merger respect thereof (by way of stock split, dividend or otherwise) (collectively, the "Registrable SecuritiesShares") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty (30) days following the Closing Date), and shall use its best commercially reasonable efforts to cause to become effective no later than sixty (60) days thereafter, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; provided, however, that each holder of Registrable Securities ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Stratos pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a), if Stratos determines that there exists material nonpublic information about Stratos which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of Stratos, would be detrimental to Stratos.
(c) Subject to the limitations of Section 6.10(b), Stratos shall: (i) prepare and file the Registration Statement with the SEC in accordance with Section 6.10(a) with respect to the Registrable Securities and shall use its best efforts to cause the Registration Statement to become effective as promptly as practicable after filing and to keep the Registration Statement effective until one (1) year after maintain its effectiveness for 12 months following the Effective Time, or such shorter time as shall be required for all of the Registrable Shares to be sold pursuant thereto (the "Effectiveness Period"). The shelf registration shall cover only the Registrable Shares. During the ten (10) day period (during which shares of Parent Common Stock are traded on the Nasdaq National Market) after the shelf registration becomes effective (or until all the Registrable Shares are sold, if sooner), Parent shall not publicly announce, or file a registration statement covering, a new public offering of its capital stock on its own behalf or on behalf of any of its stockholders other than holders of Registrable Shares pursuant hereto.
(b) Effectiveness; Suspension.
(iii) prepare and file with From time to time during the SEC such amendments and supplements to Effectiveness Period, Parent will amend or supplement the Registration Statement and the prospectus used in connection therewith contained therein as may be necessary, and to the extent necessary to comply with the provisions federal securities law and any applicable state securities statute or regulation, subject to the following limitations and qualifications.
(ii) Parent will notify the Securityholder Agent (A) when a prospectus or any prospectus supplement or amendment has been filed and when the same becomes effective, (B) of any request by the SEC or any other federal or state governmental authority during the Effectiveness Period for amendments or supplements to the Registration Statement, (C) of the Securities Act issuance by the SEC or any other Governmental Entity of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (D) of the receipt by Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or other disposition the initiation or threatening of all securities proposed to be registered any proceeding for such purpose, or (E) of the happening of any event which makes any statement made in the Registration Statement until one (1) year after or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the Effective Time; and (iii) furnish to each Holder such number of copies making of any changes in the Registration Statement or prospectus (including so that it will not contain any preliminary prospectus and untrue statement of a material fact or omit to state any amended or supplemented prospectus) in conformity with the requirements of the Securities Act, and such other documents, as each Holder may reasonably request in order to effect the offering and sale of the Registrable Securities material fact required to be offered and soldstated therein or necessary to make the statements therein not misleading.
(diii) Notwithstanding any other provision of this Section 6.10Agreement, Stratos shall Parent will have the right at any time upon the happening of any event of the kind described in clauses B-E in paragraph (ii) above, or upon the reasonable judgment of Parent's Board of Directors after consultation with counsel that it is advisable to suspend the use of the prospectus, and upon written notice to each Holder, to require that all Holders each holder of Registrable Shares ("Holder") suspend further open market offers and sales of Registrable Securities pursuant to Shares for a reasonable period of time, which period shall not exceed 45 days for each such event or an aggregate of 90 days during the Registration Statement whenever, and for so long as, in the reasonable judgment of Stratos in good faith after consultation with counsel, there is or may be in existence material undisclosed information or events with respect to Stratos Effectiveness Period (the "Suspension Right"). In the event Stratos Parent exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos Parent and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Stratos Parent after consultation with counselcounsel or until copies of a supplemental or amended prospectus becomes effective. Stratos Parent will promptly give Holders notice of any such suspension and the termination of such suspension and will use all reasonable efforts to limit minimize the length of the suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension.
(e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions an respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliance, and Stratos will reimburse each such Holder, each of its officers and directors, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use therein.
(f) It shall be a condition to Stratos' obligations hereunder to register the Registrable Securities of any Holder that such Holder agrees to indemnify Stratos, each of Stratos' directors and officers, each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Stratos, such other Holders, directors, officers, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use therein.
(g) Each party entitled to indemnification under Section 6.10(e) or 6.10(f) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
Appears in 1 contract
Form S-3 Registration Statement. (a) Stratos No later than twenty (20) days after the Closing Date, Acquiror shall use its best efforts to cause the shares of Stratos Common Stock issued in the Merger (the "Registrable Securities") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty a registration statement on Form S-3, covering the resale of the Closing Shares and all shares of Acquiror Common Stock that Parent may receive in respect of any working capital adjustment or indemnification by Acquiror (30collectively, the “Registrable Shares”) days (together with all amendments and supplements thereto, including post-effective amendments, all exhibits thereto and all material incorporated by reference therein, the “Registration Statement”). Parent agrees, at no out-of-pocket cost or expense to Parent or its Affiliates (other than the fees and expenses of counsel to Parent in connection with the registration of the Registrable Shares or in connection with Sections 4.2(b)(i) or 4.2(b)(iii) of this Agreement), to use commercially reasonable efforts to cooperate with Acquiror as reasonably requested by Acquiror in connection with the preparation and filing of the Registration Statement. Acquiror shall provide copies to and permit Parent’s counsel to review the Registration Statement and all amendments and supplements thereto no fewer than three (3) Business Days prior to their filing with the SEC and not file any document to which such counsel reasonably objects in writing. Acquiror shall use commercially reasonable efforts to (i) cause the Registration Statement to be declared effective as soon as practicable following the Closing Date, and shall use its best efforts to cause to become effective no later than sixty (60) days thereafter, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; provided, however, that each holder of Registrable Securities ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Stratos pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a), if Stratos determines that there exists material nonpublic information about Stratos which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of Stratos, would be detrimental to Stratos.
(c) Subject to the limitations of Section 6.10(b), Stratos shall: (i) prepare and file the Registration Statement with the SEC in accordance with Section 6.10(a) with respect to the Registrable Securities and shall use its best efforts to cause the Registration Statement to become effective as promptly as practicable after filing and to keep the Registration Statement effective until one (1) year after the Effective Time; (ii) prepare and file with the SEC such amendments and supplements post-effective amendments to the Registration Statement and the prospectus used in connection therewith as may be necessary, necessary to keep the Registration Statement effective until the Registration Expiration Date (as defined below) and to comply with the provisions of the Securities Act and Exchange Act with respect to the sale or other disposition distribution of all of the securities proposed to be registered covered thereby. Acquiror shall notify Parent as promptly as practicable, and in any event within twenty-four (24) hours, after the Registration Statement until is declared effective by the SEC.
(b) In furtherance of its obligations under Section 4.2(a), Acquiror will, as promptly as practicable:
(i) furnish to Parent and its legal counsel, electronically or otherwise (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by Acquiror (but not later than two (2) Business Days after the filing date, receipt date or sending date, as the case may be) one (1) year after copy of any Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus related thereto and each amendment or supplement thereto, and each letter written by or on behalf of Acquiror to the Effective Time; SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which Acquiror has sought confidential treatment), and (iiiii) furnish to each Holder such number of copies of any prospectus (a Prospectus, including any a preliminary prospectus Prospectus, and any amended or supplemented prospectus) in conformity with the requirements of the Securities Act, all amendments and supplements thereto and such other documents, documents as each Holder Parent may reasonably request in order to effect facilitate the offering and sale disposition of the Registrable Securities Shares owned by Parent that are covered by the related Registration Statement;
(ii) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness and, (ii) if such order is issued, obtain the prompt withdrawal of any such order;
(iii) prior to any public offering of Registrable Shares, use commercially reasonable efforts to register or qualify or cooperate with Parent and its legal counsel in connection with the registration or qualification of such Registrable Shares for offer and sale under the securities or blue sky laws of such jurisdictions requested by Parent and do any and all other commercially reasonable acts or things necessary or advisable to enable the distribution in such U.S. jurisdictions of the Registrable Shares covered by the Registration Statement; provided, however, that Acquiror shall not be required in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4.2(b)(iii), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 4.2(b)(iii), or (iii) file a general consent to service of process in any such jurisdiction;
(iv) use commercially reasonable efforts to cause all Registrable Shares covered by a Registration Statement to be offered and sold.listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by Acquiror are then listed;
(dv) Notwithstanding any other provision of this Section 6.10promptly notify Parent in writing, Stratos shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities pursuant prior to the Registration Statement wheneverExpiration Date, and for so long asupon discovery that, in or upon the reasonable judgment of Stratos in good faith after consultation with counsel, there is or may be in existence material undisclosed information or events with respect to Stratos (the "Suspension Right"). In the event Stratos exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos and its stockholders or until such time as the information or event is no longer material, each as determined in good faith by Stratos after consultation with counsel. Stratos will use all reasonable efforts to limit the length of the suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension.
(e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions an respect thereof), including any of the foregoing incurred in settlement happening of any litigationevent as a result of which, commenced or threatened, arising out of or based on any a Prospectus includes an untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) omits to state therein a any material fact required to be stated therein or necessary to make the statements therein, therein not misleading in light of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliancethen existing, and Stratos will reimburse each promptly prepare, file with the SEC and furnish to Parent a supplement to or an amendment of such Holder, each of its officers and directors, and each person controlling Prospectus as may be necessary so that such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will Prospectus shall not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any include an untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use therein.
(f) It shall be a condition to Stratos' obligations hereunder to register the Registrable Securities of any Holder that such Holder agrees to indemnify Stratos, each of Stratos' directors and officers, each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing;
(vi) otherwise comply with all applicable rules and regulations of the SEC under the Securities Act and the Exchange Act, and will reimburse Stratosincluding, such other Holderswithout limitation, directorsRule 172 under the Securities Act, officersfile any final Prospectus, persons including any supplement or control persons for amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act, promptly inform Parent in writing if, at any legal or any other expenses reasonably incurred time prior to the Registration Expiration Date, Acquiror does not satisfy the conditions specified in Rule 172 and, as a result thereof, Parent is required to deliver a Prospectus in connection with investigating or defending any disposition of Registrable Shares and take such claim, loss, damage, liability or actionother actions as may be reasonably necessary to facilitate the registration of the Registrable Shares hereunder; and make available to its security holders, as such expenses are incurred, in each case to the extentsoon as reasonably practicable, but only to not later than the extentAvailability Date (as defined below), that such untrue an earnings statement covering a period of at least twelve (or alleged untrue statement12) or omission months, beginning after the effective date of each Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, including Rule 158 promulgated thereunder (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use therein.
(g) Each party entitled to indemnification under Section 6.10(e) or 6.10(f) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Partypurpose of this Section 4.2(b)(vi), who shall conduct “Availability Date” means the defense 45th day following the end of the fourth fiscal quarter that includes the effective date of such claim or litigationRegistration Statement, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Partyexcept that, if representation such fourth fiscal quarter is the last quarter of Acquiror’s fiscal year, “Availability Date” means the 90th day after the end of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.fourth fiscal quarter); and
Appears in 1 contract
Samples: Merger Agreement (Glu Mobile Inc)
Form S-3 Registration Statement. (a) Stratos shall use its best efforts to cause the shares of Stratos Common Stock issued in the Merger (the "Registrable Securities") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty (30) days following the Closing Date, and shall use its best efforts to cause to become effective as promptly as practicable and, in any event, no later than sixty ninety (6090) days thereafter, a registration statement (the "Registration Statement") on Form S-3 or on such other form as is then available under the Securities Act covering the Registrable Securities; provided, however, that each . Each holder of Registrable Securities immediately after the Closing Date ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements of the SEC and to obtain any desired acceleration of the effective date of such Registration Statement. Such provision of information and materials is a condition precedent to the obligations of Stratos to cause shares of Stratos Common Stock issued in the Merger to such Holder to be included in the Registration Statement pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of the Registration Statement for a reasonable period of time up to sixty (60) calendar days, but in no event shall the postponement of effectiveness extend beyond 105 days after the deadlines therefore set forth in Section 6.10(a)Closing Date, if Stratos reasonably determines after consultation with counsel that there exists material nonpublic information about Stratos which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board Stratos' board of Directors of Stratosdirectors, would be materially detrimental to Stratos.
(c) Subject to the limitations of Section 6.10(b), Stratos shall: (i) prepare and file the Registration Statement with the SEC in accordance with Section 6.10(a) with respect to the Registrable Securities and shall use its best efforts to cause the Registration Statement to become effective as promptly as practicable after filing and to keep the Registration Statement effective until one two (12) year years after the Effective TimeClosing Date; (ii) prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary, and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities proposed to be registered in the Registration Statement until one two (12) year years after the Effective TimeClosing Date; and (iii) furnish to each Holder such number of copies of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with the requirements of the Securities Act, and such other documents, as each Holder may reasonably request in order to effect the offering and sale of the Registrable Securities to be offered and sold.
(d) Notwithstanding any other provision of this Section 6.10, Stratos shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities pursuant to the Registration Statement whenever, and for so long as, in the Stratos' reasonable judgment of Stratos judgment, exercised in good faith after consultation with counsel, there is or may be in existence exists material undisclosed information or events with respect to Stratos (the "Suspension Right"). In the event Stratos exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos and its stockholders or until such time as the information or event is no longer material, each as determined by Stratos in good faith by Stratos after consultation with counsel. , provided that Stratos will use all reasonable efforts to limit not exercise the length Suspension Rights for more than 18 trading days out of the suspension to thirty (30) calendar any 30 consecutive trading days or lessand for more than an aggregate of 50 trading days over any 12 month period. Stratos agrees to notify the Holders Stockholders' Representative promptly upon the implementation and termination of the suspension.
(e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions an respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or any alleged violation by Stratos of any rule or regulation promulgated under the Securities Act or the Exchange Act in connection with any such registration, qualification or compliance, and Stratos will reimburse each such Holder, each of its officers and directors, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will not be liable to any particular Holder in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use therein.
(f) It shall be a condition to Stratos' obligations hereunder to register the Registrable Securities of any Holder that such Holder agrees to indemnify Stratos, each of Stratos' directors and officers, each person who controls Stratos within the meaning of Section 15 of the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse Stratos, such other Holders, directors, officers, persons or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use therein.
(g) Each party entitled to indemnification under Section 6.10(e) or 6.10(f) (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
(h) Promptly after the Closing, Stratos and its counsel will instruct in writing Stratos' transfer agent to permit the sale or transfer of the Registrable Securities by any Holders notwithstanding the legend required pursuant to Section 2.6 hereof (and without the legend) to the extent that: (i) the shares proposed to be sold or transferred: (A) are outside the applicable Lock-Up period, (B) the shares are not subject any right of repurchase by Stratos or Paracer as provided in Section 2.4(i) hereof, and (C) are being sold or transferred by the Holder pursuant to and in accordance with the Registration Statement, and (ii) the Suspension Right is not then in effect. Stratos agrees to promptly notify its transfer agent of the implementation and termination of any Suspension Right then in effect. If a request for sale or transfer or release of legends is made by or on behalf of a Holder or by Stratos' transfer agent, Stratos or its counsel shall respond promptly to such request, and in any event within two (2) business days of receipt of the request by Stratos' counsel, and will approve the sale, transfer or release of the legends, as appropriate, if the above conditions are satisfied.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Stratos Lightwave Inc)
Form S-3 Registration Statement. (a) Stratos No later than twenty (20) days after the Closing Date, Buyer shall use its best efforts to cause the shares of Stratos Common Stock issued in the Merger (the "Registrable Securities") to be registered under the Securities Act so as to permit the resale thereof and in connection therewith shall use its best efforts to prepare and file with the SEC within thirty (30) days following the Closing Date, and shall use its best efforts to cause to become effective no later than sixty (60) days thereafter, a shelf registration statement (the "Registration Statement") on Form S-3 or (or, if Form S-3 is not then available to the Buyer, on such other form of registration statement as is then available under to effect a registration for resale of the Securities Act Shares), covering the Registrable Securities; provided, however, that each holder of Registrable Securities ("Holder") shall provide all such information and materials to Stratos and take all such action as may be required in order to permit Stratos to comply with all applicable requirements resale of the SEC Initial Shares (the “Registration Statement”). Each Seller agrees to cooperate with Buyer as reasonably requested by Buyer in connection with the preparation and to obtain any desired acceleration filing of the effective date of such Registration Statement. Such provision of information Buyer shall provide copies to and materials is a condition precedent permit one counsel for the Sellers to the obligations of Stratos pursuant to this Section 6.10. Stratos shall not be required to effect more than one (1) registration under this Section 6.10. The offering made pursuant to such registration shall not be underwritten.
(b) Notwithstanding Section 6.10(a), Stratos shall be entitled to postpone the filing or declaration of effectiveness of review the Registration Statement for a reasonable period of time up and all amendments and supplements thereto at least two (2) Business Days prior to sixty (60) calendar days after the deadlines therefore set forth in Section 6.10(a), if Stratos determines that there exists material nonpublic information about Stratos which would be required by the Securities Act to be disclosed in the Registration Statement, the disclosure of which, in the good faith determination of the Board of Directors of Stratos, would be detrimental to Stratos.
(c) Subject to the limitations of Section 6.10(b), Stratos shall: (i) prepare and file the Registration Statement its filing with the SEC in accordance with Section 6.10(a) with respect to SEC. Buyer covenants and agrees for the Registrable Securities and benefit of all the Sellers that Buyer shall use its reasonable best efforts to cause the Registration Statement to become be declared effective as soon as practicable following the Closing Date. Buyer shall notify each Seller as promptly as practicable after filing and to keep the Registration Statement is declared effective until one (1) year after the Effective Time; (ii) prepare and file with by the SEC and shall provide each Seller with such number of copies of any related prospectus and all amendments and supplements thereto as each Seller may reasonably request to the Registration Statement and the prospectus be used in connection therewith as may be necessary, and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities proposed to be registered the Shares.
(b) For not more than forty-five (45) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month period, Buyer may suspend the use of any prospectus included in the Registration Statement until one in the event that Buyer’s Board of Directors determines in good faith that such suspension is necessary to (1a) year after delay the Effective Time; and (iii) furnish to each Holder such number disclosure of copies material non-public information concerning Buyer, the disclosure of any prospectus (including any preliminary prospectus and any amended or supplemented prospectus) in conformity with which at the requirements of the Securities Act, and such other documents, as each Holder may reasonably request in order to effect the offering and sale of the Registrable Securities to be offered and sold.
(d) Notwithstanding any other provision of this Section 6.10, Stratos shall have the right at any time to require that all Holders suspend further open market offers and sales of Registrable Securities pursuant to the Registration Statement whenever, and for so long asis not, in the reasonable judgment of Stratos in good faith after consultation with counselopinion of Buyer’s Board of Directors, there is or may be in existence material undisclosed information or events with respect to Stratos (the "Suspension Right"). In the event Stratos exercises the Suspension Right, such suspension will continue for the period best interests of time reasonably necessary for disclosure to occur at a time that is not materially detrimental to Stratos Buyer and its stockholders stockholders, or until (b) amend or supplement any such time as Registration Statement or the information related prospectus so that such Registration Statement or event is no longer material, each as determined in good faith by Stratos after consultation with counsel. Stratos will use all reasonable efforts to limit the length of the suspension to thirty (30) calendar days or less. Stratos agrees to notify the Holders promptly upon termination of the suspension.
(e) Stratos will indemnify each Holder, each of its officers and directors and partners, and each person controlling such Holder within the meaning of Section 15 of the Securities Act against all expenses, claims, losses, damages or liabilities (or actions prospectus shall not include an respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any registration, qualification or compliance effected pursuant to this Section 6.10, or based on any omission (or alleged omission) omit to state therein a material fact required to be stated therein or necessary to make the statements therein, in the case of the prospectus in light of the circumstances in under which they were made, not misleadingmisleading (an “Allowed Delay”). Buyer shall promptly notify each Seller upon such determination of an Allowed Delay and shall also promptly notify each Seller upon expiration or termination of an Allowed Delay.
(c) Buyer will pay all expenses associated with the Registration Statement, including filing and printing fees, Buyer’s counsel and accounting fees and expenses, but excluding the Sellers’ expenses in connection with their counsel’s review of the Registration Statement. Each Seller shall be (and Buyer, the Company and each other Seller shall not be) responsible for his own expenses (including broker’s fees and, if applicable, fees of underwriters (including any discounts, commissions or any violation other selling concessions), selling brokers, dealer managers or any alleged violation similar securities industry professionals) with respect to the Initial Shares being sold.
(d) Buyer shall maintain the effectiveness of the Registration Statement until the earliest to occur of: (i) the first anniversary of the date the Registration Statement is first declared effective by Stratos the SEC, (ii) the date that all of any rule or regulation promulgated the Initial Shares may be sold under Rule 144 under the Securities Act or (iii) the date that all of the Shares have actually been sold (the “Registration Expiration Date”).
(e) Buyer shall use reasonable best efforts to effect the registration of the Initial Shares in accordance with the terms hereof, and pursuant thereto (and without limitation) Buyer shall:
(i) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement and any related prospectus as may be necessary to keep the Registration Statement effective until the Expiration Date and to comply with the provisions of the Securities Act and the Exchange Act in connection with any such registration, qualification or compliance, and Stratos will reimburse each such Holder, each of its officers and directors, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such expenses are incurred, provided that Stratos will not be liable in any such case respect to the extent that any such claim, loss, damage, liability or expense arises out distribution of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to Stratos by such Holder or controlling person and specifically for use thereinall of the Initial Shares covered thereby.
(fii) It shall be a condition use reasonable best efforts to Stratos' obligations hereunder to register (a) prevent the Registrable Securities issuance of any Holder that stop order or other suspension of effectiveness and (b) if such Holder agrees order is issued, obtain the prompt withdrawal of any such order.
(iii) use reasonable best efforts to indemnify Stratoscause the Initial Shares to be listed on each securities exchange, each interdealer quotation system or other market on which similar securities issued by Buyer are then listed.
(iv) promptly notify the Sellers, at any time prior to the Expiration Date, upon discovery that, or upon the happening of Stratos' directors and officersany event as a result of which, each person who controls Stratos within the meaning of Section 15 of prospectus contained in the Securities Act, and each other such Holder, each of its officers and directors and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any Registration Statement includes an untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly prepare, file with the SEC and furnish to each Seller a supplement to or an amendment of such prospectus as may be necessary so that such prospectus shall 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 not misleading, and will reimburse Stratos, such other Holders, directors, officers, persons or control persons for any legal or any other expenses reasonably incurred misleading in connection with investigating or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to light of the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to Stratos by such Holder specifically for use thereincircumstances then existing.
(gv) Each party entitled promptly notify the Sellers of any request by the SEC (a) to indemnification under Section 6.10(ereview the Registration Statement and any of Buyer’s other filings with the SEC prior to declaring the Registration Statement effective, (b) for the amending or 6.10(fsupplementing of the Registration Statement, or (c) (the "Indemnified Party") shall give notice for additional information related to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense; provided, however, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to differing or potentially differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 6.8(e) or 6.8(f) unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigationRegistration Statement.
Appears in 1 contract
