MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker: (i) The Issuer shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC. (ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension. (iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading. (iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal. (vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto. (vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities. (viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed. (b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker. (c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. (d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus. (e) The Issuer and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement. (f) The Issuer will comply with the provisions of this Section 4 at its own expense. (g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 5 contracts
Samples: Registration Rights Agreement (LVB Acquisition, Inc.), Registration Rights Agreement (LVB Acquisition, Inc.), Registration Rights Agreement (LVB Acquisition, Inc.)
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities or Exchange Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees Company and the Guarantors agree to use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer Company and the Guarantors will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the SecuritiesExisting Notes) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer Company agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, Securities and shall use its commercially reasonable best efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer Company further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for the applicable Market-Making Registration Statement, and the Issuer Company agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer Company may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer Company reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 60 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effective Time of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company determines in good faith that such action is in the best interests of the Issuer Company or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer Company notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vi) The Issuer Company shall furnish to the Market-Maker Maker, in each case without charge to the Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, and electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer Company shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer Company that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer Company will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities (or Existing Notes, if applicable) covered by such Market-Making Registration Statement; provided that neither the Issuer Company nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time such Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company, on the one hand, and the Market-Maker, on the other hand, hereby agree agrees to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the SecuritiesExisting Notes, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sungard Capital Corp Ii), Registration Rights Agreement (Sungard Capital Corp Ii)
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities or Exchange Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the SecuritiesExisting Notes) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, Securities and shall use its commercially reasonable best efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 60 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effective Time of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker Maker, in each case without charge to the Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, and electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities (or Existing Notes, if applicable) covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time such Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuer shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the SecuritiesExisting Notes, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sungard Data Systems Inc), Registration Rights Agreement (Sungard Data Systems Inc)
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “"Market-Maker”") or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for as the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to owns any equity securities of the Registrable Securities Issuers or any of their affiliates and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Issuers shall file under the Securities Act one a registration statement (which may be the Exchange Offer Registration Statement or more registration statementsthe Shelf Registration Statement if permitted by the rules and regulations of the SEC), in a form approved by the Market-Maker (each such filing, a “the "Market-Making Registration,” " and each such registration statement, a “the "Market-Making Registration Statement”"). The Issuer agrees Issuers agree to use its commercially their reasonable best efforts to cause a the Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, and to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the an Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees Issuers agree that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement be kept continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer Issuers further agrees agree to supplement or make amendments to each the Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for the applicable such Market-Making Registration Statement, and the Issuer Company agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer Company may suspend the offering and sale under a the Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer Company reasonably determines to be advisable for valid business reasons, but in any event not to exceed 120 days in excess of 45 consecutive days or more than three (3) times during any calendar each year during which such the Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Effective Time of the Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company determines in good faith that such action is in the best interests of the Issuer Company or (ii) such Market-the Market Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer Company notifies the Market-Maker within five days before after such Board of Directors makes the effectiveness of such suspensionrelevant determination set forth in clause (A).
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and through (E) occurs during the period for which the Issuer is Issuers are required to maintain an effective Market-Making Registration Statement, the Issuer Issuers shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Issuers shall use its commercially promptly their reasonable best efforts to obtain its withdrawal.
(vi) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(vii) The Issuer Issuers shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Issuers may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such the Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration StatementRegistration, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer Issuers will use its commercially their reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor Issuers will not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer Company represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusprospectus (the "Market-Maker's Information").
(e) The Issuer At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of the Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuers, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 7 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 at its own expenseexpense and will reimburse the Market-Maker for its expenses associated with this Section 4 (including reasonable fees of counsel).
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “"amend,” “" "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 2 contracts
Samples: Registration Rights Agreement (Westborn Service Center, Inc.), Registration Rights Agreement (Westborn Service Center, Inc.)
MARKET MAKING. (a) For the sole benefit of XxxxxxxXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx & Co. Incorporated (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for as the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to owns any equity securities of the Registrable Securities Issuers or any of their affiliates and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary coursecourse and (z) in the reasonable opinion of the Market-Maker’s counsel, a market making prospectus would be required for the Market Maker to make a market in the Registrable Securities or Exchange Securities in the ordinary course under applicable law or SEC interpretation of law, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Issuers shall file under the Securities 1933 Act one a registration statement (which may be the Exchange Offer Registration Statement or more registration statementsthe Shelf Registration Statement if permitted by the rules and regulations of the SEC), in a form approved by the Market-Maker (each such filing, a the “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees Issuers agree to use its their commercially reasonable efforts to cause a the Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) 2.1 above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveeffective, and, in each case, and to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Initial Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Initial Securities at the time the an Exchange Offer is to be conducted under Section 2(a) 2.1 above, the Issuer agrees Issuers agree that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Initial Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement be kept continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Initial Securities, as the case may be. The Issuer Issuers further agrees agree to supplement or make amendments to each the Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for the applicable such Market-Making Registration Statement, and the Issuer Company agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer Company may suspend the offering and sale under a the Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer Company reasonably determines to be advisable for valid business reasonsnecessary, but in any event not to exceed 120 days in excess of 45 consecutive days or more than three (3) times during any calendar each year during which such the Market-Making Registration Statement is required to be effective and usable hereunder (measured from the effective time such of the Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company determines in good faith that such action is in the best interests of the Issuer Company or (ii) such Market-the Market Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer Company notifies the Market-Maker within five days before after such Board of Directors makes the effectiveness of such suspensionrelevant determination set forth in clause (A).
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.;
Appears in 1 contract
Samples: Registration Rights Agreement (NPC International Inc)
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx & Co. Securities or Exchange Securities are outstanding and J. P. Morgan Securities Inc. (in such capacity, the “"Market-Maker”") or any of its xxx xx xxx affiliates (as defined in the rules and regulations of the SEC), so long as (xCommission) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Company or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company shall (A) on the date that the Exchange Registration Statement is filed with the Commission, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “"Market-Making Registration Statement”). The Issuer agrees to ") (which may be the Exchange Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the Commission) and use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(aOffer; (B) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for so long as or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Maker may be Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any supplement to the registration form used by related prospectus, the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to Company will furnish to the Market-Maker copies of any all such supplement or amendment prior documents proposed to be filed, which documents will be subject to the review of the Market-Maker and its being used or promptly following its filing with counsel, (2) the SEC.
(ii) Notwithstanding Company will not file the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period Statement, any amendment thereto or periods any supplement to the Board of Directors of related prospectus to which the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement Maker and its counsel shall reasonably object unless the Company is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, be filed and (B3) the Issuer notifies Company will provide the Market-Maker within five days before and its counsel with copies of the effectiveness of such suspensionMarket-Making Registration Statement and each amendment and supplement filed.
(iiiii) The Issuer Company shall notify the Market-Maker and, if requested by the Market-Maker, confirm such advice in writing, (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading; and (F) of any advice from a nationally recognized statistical rating organization that such organization has placed the Company under surveillance or review with negative implications or has determined to downgrade the rating of the Securities or Exchange Securities or any other debt obligation of the Company whether or not such downgrade shall have been publicly announced.
(iviii) If any event contemplated by Section 4(a)(iii)(B), 7(a)(ii) (DB) and through (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viivi) The Issuer Company shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-market making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 47, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate event or transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and issued; provided that the Issuer shall not be obligated to amend or supplement such use of the Market-Making Registration Statement or shall not be suspended for more than 60 days in the prospectus included therein until it reasonably deems appropriateaggregate in any consecutive 12-month period. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii7(a)(vii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer Company will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities or Exchange Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them it under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” "Underwriting" section of the prospectusprospectus (the "Market-Maker's Information").
(e) The Issuer At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Registration Statement or the Shelf Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of its Chairman of the Board of Directors or Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; (iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; (iv) such officers have carefully examined the Market-Making Registration Statement and the Guarantorsprospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Registration Statement or the Shelf Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with the written opinion of counsel for the Company satisfactory to the Market-Maker to the effect that:
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such opinion, if applicable; if required, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; (iii) to the knowledge of such counsel, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and (iv) such counsel has reviewed the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and participated with officers of the Company and independent public accountants for the Company in the preparation of such Market-Making Registration Statement and prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and has no reason to believe that (except for the financial statements and other financial and statistical data contained therein as to which no belief is required) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Registration Statement or the Shelf Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented to include audited annual financial information, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a letter of KPMG LLC (or other independent public accountants for the Company of nationally recognized standing) in form satisfactory to the Market-Maker, addressed to the Market-Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and, (ii) in all other respects, substantially in the form of the letter delivered to the Initial Purchasers pursuant to Section 7(c) of the Purchase Agreement, with, in the case of an amendment or supplement to include audited financial information, such changes as may be necessary to reflect the amended or supplemented financial information.
(h) The Company, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(gi) The agreements contained in this Section 4 7 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or and Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(j) The Company will comply with the provisions of this Section 7 at its own expense and will reimburse the Market-Maker for its reasonable out-of-pocket expenses associated with this Section 7 (including reasonable fees of outside counsel).
(k) For purposes of this Section 47, any reference to the terms “"amend,” “", "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (National Waterworks Inc)
MARKET MAKING. (a) For so long as any of the sole benefit Securities are outstanding and any of Xxxxxxx, Xxxxx & Co. the Initial Purchasers (each in such capacity, a “Market-Maker” and collectively, the “Market-MakerMakers”) or any of its their respective affiliates (as defined in the rules and regulations of the SEC), so long as (xCommission) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Company or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, unless in the written opinion of outside counsel of the Company addressed to the Market-Maker, based on the issuance of formal or informal guidance, advice or other pronouncements by the Commission after the date hereof, that the Market-Maker is not required to deliver a prospectus, the following provisions shall apply for the sole benefit of each of the Market-MakerMakers:
(i) The Issuer Company shall (A) on the date that the Exchange Offer Registration Statement is filed with the Commission, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to ) (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the Commission) and use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(aOffer; (B) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for so long as or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Maker may be Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any supplement to the registration form used by related prospectus, the Issuer for Company will furnish to the applicable Market-Makers copies of all such documents proposed to be filed, which documents will be subject to the review of the Market-Makers and their counsel, (2) the Company will not file the Market-Making Registration Statement, and any amendment thereto or any supplement to the Issuer agrees related prospectus to furnish to which either of the Market-Maker copies of any such supplement Makers or amendment prior to its being used or promptly following its filing with their counsel shall reasonably object unless the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement Company is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, be filed and (B3) the Issuer notifies Company will provide each of the Market-Maker within five days before Makers and their counsel with copies of the effectiveness of such suspensionMarket-Making Registration Statement and each amendment and supplement filed.
(iiiii) The Issuer Company shall notify the each Market-Maker and, if requested by any Market-Maker, confirm such advice in writing, (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading; and (F) of any advice from a nationally recognized statistical rating organization that such organization has placed the Company under surveillance or review with negative implications or has determined to downgrade the rating of the Securities or any other debt obligation of the Company whether or not such downgrade shall have been publicly announced.
(iviii) If any event contemplated by Section 4(a)(iii)(B), 4(a)(ii)(B) through (D) and (EF) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the each Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as such Market-Maker may reasonably request.
(viivi) The Issuer Company shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the each Market-Maker in connection with its market-market making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and issued; provided that the Issuer shall not be obligated to amend or supplement such use of the Market-Making Registration Statement or shall not be suspended for more than 60 days in the prospectus included therein until it reasonably deems appropriateaggregate in any consecutive 12 month period. The Each Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii4(a)(vii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a each Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the each Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries Company and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the such Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer will Company shall use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or “blue sky sky” laws of such jurisdictions as the each Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject to it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them it under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker Makers specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker Makers to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by either Market-Maker) furnish the Market-Makers and their counsel with a certificate of its Chairman of the Board of Directors or Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; (iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; (iv) such officers have carefully examined the Market-Making Registration Statement and the Guarantorsprospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company, on the one hand, and the each Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Notes and Exchange Securities, as the case may be, Notes and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” ”, “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Registration Rights Agreement (Sensus Metering Systems Inc)
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities LLC (each in such capacity, a “Market-Maker” and together, the “Market-MakerMakers”) or any of its their respective affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the a Market-Maker, for the such Market-Maker or any of its affiliates to deliver a prospectus Prospectus in connection with market-making activities with respect to the Registrable Securities or Exchange Securities and the such Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary coursecourse (the “Market-Making Conditions”), the following provisions shall apply for the sole benefit of such Market-Maker (it being understood that only a person for whom the Market-Maker:Making Conditions apply at the applicable time shall be deemed a Market-Maker for purposes of the following provisions at any time):
(i) The Issuer Company shall file under the Securities Act one or more registration statements, in a form approved by the each Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer Company agrees to use its commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the either Market-Maker may be required to deliver a prospectus Prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the a Market-Maker holds Registrable Securities or Exchange Securities at the earlier of the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer Company agrees that the applicable Market-Making Registration shall provide for the resale by the such Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the such Market-Maker may be required to deliver a prospectus Prospectus in connection with the sale of such such, Registrable Securities or Exchange Securities, as the case may be. The Issuer Company further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for the applicable Market-Making Registration Statement, and the Issuer Company agrees to furnish to the each Market-Maker copies of any such supplement or amendment or any Issuer Free Writing Prospectus prior to its being used or promptly following its filing with the SEC, provided that the filing of any such document with the SEC shall constitute compliance with the foregoing obligation to furnish such document to each Market Maker.
(ii) Notwithstanding the foregoing, the Issuer Company may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer Company reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive 90 days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effectivenes Date of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company determines in good faith that such action is in the best interests of the Issuer Company or (ii) such Market-Making Registration Statement, prospectus Prospectus, Issuer Free Writing Prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Issuer Company notifies the each Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer Company shall notify the each Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus Prospectus or any Issuer Free Writing Prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus Prospectus, any Issuer Free Writing Prospectus or for additional information; (C) of the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities Securities, for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus Prospectus, such Issuer Free Writing Prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus Prospectus or Issuer Free Writing Prospectus or file any other required document so that the prospectus Prospectus or Issuer Free Writing Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use promptly its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer Company shall furnish to the each Market-Maker Maker, in each case without charge to each Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto andthereto, if not available on XXXXX, any Issuer Free Writing Prospectus and electronic copies of the related prospectus Prospectus and any amendment or supplement thereto.
(vii) The Issuer Company shall consent to the use of the prospectus Prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto or any Issuer Free Writing Prospectus by the a Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus Prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus Prospectus included therein until it reasonably deems appropriate. The Each Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus Prospectus relating thereto until advised in writing by the Issuer Company that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker Makers all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its commercially reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-MakerMakers.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer Company will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker Makers reasonably requests request in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by such Market-Making Registration Statement; provided that neither the Issuer Company nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents and agrees that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus Prospectus, any Issuer Free Writing Prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus Prospectus, any Issuer Free Writing Prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus Prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the a Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the such Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectusProspectus and in the analogous section of the Canadian wrapper, if any, of the Prospectus.
(e) At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time any Issuer Free Writing Prospectus is first used or such Market-Making Registration Statement or the related Prospectus or Issuer Free Writing Prospectus shall be amended or such Prospectus or Issuer Free Writing Prospectus shall be supplemented, the Company shall (if requested in writing by a Market-Maker) furnish such Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the Prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and in the case of any Issuer Free Writing Prospectus or an amendment or supplement to any Issuer Free Writing Prospectus, such Issuer Free Writing Prospectus or amendment or supplement to the Issuer Free Writing Prospectus was filed with the SEC pursuant to Rule 433 under the Securities Act on the date specified therein;
(iii) to the knowledge of such officer, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(iv) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer and the GuarantorsCompany, on the one hand, and the each Market-MakerMaker severally but not jointly, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus Prospectus contained therein or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx & Co. Notes or Exchange Notes are outstanding and JPMorgan (in such capacity, the “"Market-Maker”") or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (xCommission) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsCompany, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Note Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities Notes or Exchange Securities Notes as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company and the Note Guarantors shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement, is filed with the Commission, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “"Market-Making Registration Statement”). The Issuer agrees to ") (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the Commission) and use its commercially reasonable efforts to cause a such Market-Making Registration Statement with respect to be declared effective by the Commission on or prior to the consummation of the Exchange Offer, (B) periodically amend such Market-Making Registration Statement so that the information contained therein complies with the requirements of Section 10(a) under the Securities Act, (and, upon reasonable request C) if reasonably requested in writing by the Market-Maker, within 45 days following the Issuer will use commercially reasonable efforts end of each of the Company's fiscal quarters (other than the fourth quarter), file a supplement to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, prospectus contained in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective that sets forth the financial results of the Company for so long as such quarter, (D) amend the Market-Maker may be Making Registration Statement or amend or supplement the related prospectus when necessary to reflect any material changes in the information provided therein and (E) amend the Market-Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any amendment or supplement to the registration form used by related prospectus (other than a supplement filed pursuant to clause (C) of this paragraph unless the Issuer for the applicable Market-Making Registration StatementMaker reasonably requests), and the Issuer agrees to Company will furnish to the Market-Maker copies of any all such supplement or amendment prior documents proposed to be filed, which documents will be subject to the review of the Market-Maker and its being used or promptly following its filing with counsel and (2) the SEC.
(ii) Notwithstanding Company and the foregoing, Note Guarantors will not file the Issuer may suspend the offering and sale under a Market-Making Registration Statement for Statement, any amendment thereto or any amendment or supplement to the related prospectus (other than a period or periods supplement filed pursuant to clause (C) of this paragraph unless the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required Maker reasonably requests) to be effective and usable hereunder (measured from which the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) Maker and its counsel shall reasonably object unless the Board of Directors of Company and the Issuer determines in good faith Note Guarantors are advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make the statements therein, in light of the circumstances be filed under which they were made, not misleadingapplicable securities laws, and (B) the Issuer notifies Company will provide the Market-Maker within five days before and its counsel with copies of the effectiveness of such suspensionMarket-Making Registration Statement and each amendment and supplement filed.
(iiiii) The Issuer Company shall notify the Market-Maker and, if requested by the Market-Maker, confirm such advice in writing, (A) when any Market-Making Registration Statement, any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; , (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; , (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; , (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities Notes or Exchange Securities Notes for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; purpose and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (DSections 6(a)(ii)(B) and through (E) occurs during the period for which the Issuer is Company and the Note Guarantors are required to maintain an effective Market-Making Registration Statement, the Issuer Company and the Note Guarantors shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities Notes or Exchange Securities Notes for sale in any jurisdiction, the Issuer Company and the Note Guarantors shall promptly use its commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viivi) The Issuer Company and the Note Guarantors shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-market making activities.
(vii) For so long as the Notes or Exchange Notes shall be outstanding, the Company shall furnish to the Market-Maker (A) as soon as practicable after the end of each of the Company's fiscal years, the number of copies reasonably requested by the Market-Maker of the Company's annual report for such year, (B) as soon as available, the number of copies reasonably requested by the Market-Maker of each report (including, without limitation, reports on Forms 10-K, 10-Q and 8-K) or definitive proxy statements of the Company filed under the Exchange Act or mailed to stockholders and (C) all public reports and all reports and financial statements furnished by the Company to the Nasdaq National Market System or any U.S. national securities exchange or quotation service upon which the Notes or Exchange Notes may be listed pursuant to requirements of or agreements with such exchange or quotation service or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder.
(viii) Notwithstanding the foregoing provisions of this Section 46, the Issuer Company and the Note Guarantors may for valid business reasons, including without limitation, a potential material acquisition, divestiture of assets or other material corporate transaction, issue a notice notify the Market-Maker in writing that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities Notes or Exchange Securities (or Securities, if applicable) and may issue any notice suspending Notes; provided that the use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included contained therein until it reasonably deems appropriateshall not be suspended for more than 60 days in the aggregate in any consecutive 12-month period. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to Sections 6(a)(ii)(B) through (E) or this Section 4(a)(viii6(a)(viii), it will discontinue use of each the prospectus contained in the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the prospectus contained in the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its commercially reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer Company and the Note Guarantors will use its commercially reasonable best efforts to register or qualify such Registrable Securities qualify, or cooperate with the Market-Maker and its counsel in connection with the registration or qualification of, the Notes or Exchange Securities (or Securities, if applicable), as applicable, Notes for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities Notes or Exchange Notes covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor Company and the Note Guarantors will not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer represents Company and the Note Guarantors represent and agree that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the Market-Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusprospectus (the "Market-Maker's Information").
(e) The Issuer and At the Guarantors, on the one hand, and time of effectiveness of the Market-Maker, on Making Registration Statement and concurrently with each time the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of its Chairman of the Board of Directors or its President and Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective, (ii) in the case of an amendment to the Market-Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; in the case of an amendment or supplement to the related prospectus, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein, (iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission and (iv) such officers have carefully examined the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) At the time of effectiveness of the Market-Making Registration Statement and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with the written opinion of counsel for the Company satisfactory to the Market-Maker to the effect that:
(i) the Market-Making Registration Statement has been declared effective, (ii) in the case of an amendment to the Market-Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such opinion, if applicable; in the case of an amendment or supplement to the related prospectus, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein, (iii) to the knowledge of such counsel, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission and (iv) such counsel has reviewed the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and participated with officers of the Company and independent public accountants for the Company in the preparation of such Market-Making Registration Statement and prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and has no reason to believe that (except for the financial statements and other financial and statistical data contained therein shall be deemed as to refer to and include which no belief is required) as of the filing under the Exchange Act date of any document deemed to be incorporated therein by reference.such
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Sea Coast Foods, Inc.)
MARKET MAKING. (a) For The provisions of this Section 3 shall be effective only if the sole benefit of XxxxxxxIssuer, in its discretion, gives written notice to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx & Co. Incorporated (in such capacity, the “Market-Maker”) or any that this Section 3 is effective, and shall cease to be effective (with respect to compliance after such non-effectiveness) five Business Days after the Company gives written notice to the Market-Maker that this Section 3 is no longer effective.
(a) For the sole benefit of the Market-Maker and its affiliates (as defined in the rules and regulations of the SECCommission), so long as as, following notice from the Issuer pursuant to the preceding paragraph, (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, a market making prospectus would be required for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary coursecourse under applicable law or Commission interpretation of law, the following provisions shall apply for the sole benefit of the Market-Makerapply:
(i) The Issuer shall file under the Securities Act one a registration statement (which may be the Exchange Offer Registration Statement or more registration statementsthe Shelf Registration Statement if permitted by the rules and regulations of the Commission), in a form reasonably approved by the Market-Maker (each such filing, a the “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable efforts to cause a the Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, and to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the an Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement be kept continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each the Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iiiii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto contain an untrue statement of a material fact or omit to state a material fact necessary, in light of the circumstances under which they were made, to be not misleading or otherwise that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D3(a)(ii)(B) and through (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viivi) The Issuer shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 43, the Issuer may suspend the offering and sale under the Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines necessary if (A) the Board of Directors determines (i) there are valid business reasonsreasons for doing so (until such business reasons cease to exist), including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue or (ii) if the Market Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a notice material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days after the Board of Directors makes the relevant determination set forth in clause (A); provided that a the period of suspension under clause (A)(ii) shall not exceed 120 days in each year during which the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriateeffective. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii3(a)(vii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration StatementRegistration, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its commercially reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all material respects to the requirements of the Securities 1933 Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectusprospectus (the “Market-Maker’s Information”).
(e) The At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time such Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuer and the Guarantors, on the one hand, and shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the other handdate specified therein; and
(iii) as of the date of such Market-Making Registration Statement, hereby agree to indemnify each otheramendment or supplement, andas applicable, such Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, contribute did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the other, in accordance with Section 8 of this Agreementstatements therein not misleading.
(f) The Issuer will comply with its requirements under the provisions of this Section 4 3 at its own expense.
(g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 43, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Nuveen Asset Management)
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx Securities or Exchange Securities are outstanding and Xxxxxx Xxxxxxx & Co. Incorporated (in such capacity, the “Market-Market Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsIssuer, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Market Maker:
(i) The Issuer and the Guarantors shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement is filed with the SEC, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Market Making Registration Statement”). The Issuer agrees to ) (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the SEC) and use its commercially their reasonable best efforts to cause a Market-such Market Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared become effective on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the initial effective date of the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveStatement, and, in each case, to keep as applicable; (B) periodically amend such Market-Market Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at Act; (C) amend the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Market Making Registration Statement continuously effective for so long as or amend or supplement the Market-Maker may be related Prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Market Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any amendment or supplement to the registration form used by related Prospectus, the Issuer for will furnish to the applicable Market-Market Maker copies of all such documents proposed to be filed, which documents will be subject to the review of the Market Maker and its counsel and (2) the Issuer and the Guarantors will not file the Market Making Registration Statement, any amendment thereto or any amendment or supplement to the related Prospectus to which the Market Maker and its counsel shall reasonably object unless the Issuer is advised by counsel that such Market Making Registration Statement or any such amendment or supplement is required to be filed under applicable securities laws and the Issuer agrees to furnish to will provide the Market-Market Maker and its counsel with copies of any such the Market Making Registration Statement and each amendment and supplement or amendment prior to its being used or promptly following its filing with the SECfiled.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Market Maker and, if requested by the Market Maker, confirm such advice in writing, (A) when any Market Making Registration Statement, any post-effective amendment to a Market-the Market Making Registration Statement or any amendment or supplement to the related prospectus Prospectus has been filed, and, with respect to any Market Making Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-the Market Making Registration Statement, any supplement or amendment to the related prospectus Prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-the Market Making Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Issuer of any notice of objection of the SEC to the use of the Market Making Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-the Market Making Registration Statement, the related prospectus Prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-the Market Making Registration Statement, such prospectus Prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D5(a)(ii)(B) and through (E) occurs during the period for which the Issuer is and the Guarantors are required to maintain an effective Market-Market Making Registration Statement, the Issuer shall use its commercially reasonable efforts and the Guarantors shall, subject to Section 5(a)(i), promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Market Making Registration Statement or an amendment or supplement to the related prospectus Prospectus or file any other required document so that the prospectus Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a Market-the Market Making Registration Statement Statement, any notice of objection pursuant to Rule 401(g)(2) under the Securities Act or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer and the Guarantors shall promptly use its commercially their reasonable best efforts to obtain its withdrawalthe withdrawal of such order or the resolution of such objection, including by filing an amendment to the Market Making Registration Statement on the proper form as necessary.
(viv) The Issuer shall furnish to the Market-Maker Market Maker, without charge, (i) at least one conformed copy of each Market-the Market Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus Prospectus and any amendment or supplement theretothereto as the Market Maker may reasonably request.
(viivi) The Issuer and the Guarantors shall consent to the use of the prospectus Prospectus contained in a Market-the Market Making Registration Statement or any amendment or supplement thereto by the Market-Market Maker in connection with its market-market- making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 45, the Issuer and the Guarantors may for valid business reasons, including without limitation, a potential material acquisition, divestiture of assets or other material corporate transaction, issue a notice notify the Market Maker in writing that a Market-the Market Making Registration Statement is no longer effective or the prospectus Prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending ; provided that the use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Market Making Registration Statement or the prospectus included Prospectus contained therein until it reasonably deems appropriateshall not be suspended for more than 60 days (whether or not consecutive) in the aggregate in any 12-month period. The Market-Market Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii5(a)(vii), it will discontinue use of each Market-the Prospectus contained in the Market Making Registration Statement until receipt of copies of the supplemented or amended prospectus Prospectus relating thereto or until advised in writing by the Issuer that the use of a Market-the Prospectus contained in the Market Making Registration Statement may be resumed.
(b) In connection with a Market-the Market Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker Market Maker, at reasonable times and in a reasonable manner, all relevant pertinent financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its cause the respective officers, directors, employees, accountants directors and counsel employees of the Issuer and the Guarantors to supply all relevant information reasonably requested by such representative or counsel or the Market-Market Maker; provided that if any such information is identified by the Issuer or any Guarantor as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of any Market Maker.
(c) Prior to the initial effective date of a Market-the Market Making Registration Statement, the Issuer will and the Guarantors shall use its commercially their reasonable best efforts to register or qualify such Registrable the Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the all applicable state securities or blue sky laws of such jurisdictions as the Market-Market Maker reasonably requests in writing writing, cooperate with the Market Maker in connection with any filings required to be made with the National Association of Securities Dealers, Inc. and do any and all other acts or things that may be reasonably necessary or advisable to enable the offer and sale in such jurisdictions of the Securities or Exchange Securities covered by such Market-the Market Making Registration Statement; provided that neither the Issuer nor any Guarantor will and the Guarantors shall not be required to (i) qualify generally to do business as a foreign corporation or other entity or as a dealer in securities in any jurisdiction where it is would not then otherwise be required to so qualified or qualify, (ii) file any general consent to take any action which would subject it itself to general service of process in any such jurisdictions or (iii) subject itself to taxation in any such jurisdiction where if it is not then so subject.
(d) The Issuer represents and the Guarantors represent and agree that each Market-the Market Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus Prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may bemaybe, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the each effective date of such Market-Market Making Registration Statement or post-effective amendments and as of the filing date of any amendments or supplements to such prospectus Prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-the Market Making Registration Statement or the related prospectus Prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Market Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the Market-Market Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectusProspectus (the “Market Maker’s Information”).
(e) At the time of initial effectiveness of the Market Making Registration Statement and concurrently with each time the Market Making Registration Statement shall be amended by post-effective amendment, including by the filing of an annual report incorporated by reference into the Market Making Registration Statement, or the related Prospectus shall be amended or supplemented, the Issuer shall (if requested by the Market Maker) furnish the Market Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) the Market Making Registration Statement has become effective; (ii) in the case of an amendment to the Market Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; and in the case of an amendment or supplement to the Prospectus, such amendment or supplement to the Prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; (iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market Making Registration Statement has been issued, including any notice of objection of the SEC to the use of the Market Making Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, and no proceeding for that purpose is pending or threatened by the SEC; and (iv) such officers have carefully examined the Market Making Registration Statement and the Prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the applicable effective date of such Market Making Registration Statement, or the date of such amendment or supplement, as applicable, the Market Making Registration Statement and the Prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer and the Guarantors, on the one hand, and the Market-Market Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(fg) The Issuer and the Guarantors will comply with the provisions of this Section 4 5 at its their own expense.
(gh) The agreements contained in this Section 4 5 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or and Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 45, (i) any reference to the terms “amend,” ”, “amendment” or “supplement” with respect to the applicable Market-Market Making Registration Statement or the prospectus Prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by referencereference and (ii) any reference to the terms “Securities” or “Exchange Securities” shall be deemed to refer to and include any securities issued in exchange for or with respect to such Securities or Exchange Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (US Oncology Holdings, Inc.)
MARKET MAKING. (a) For the sole benefit of XxxxxxxThe Company will, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), if requested to do so long as (x) by any of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, Initial Purchasers in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus good faith belief that such actions are required in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes order to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above applicable law, regulation or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveadministrative practice, and, in each case, to keep such Market-Making Registration Statement continuously effective and for so long as any of the Market-Maker may be required to deliver a prospectus in connection with transactions Securities are outstanding and any of the Initial Purchasers or any of their Affiliates (as defined in the Registrable Securities Rules and Regulations under the Act) owns beneficially 5% or more of the Exchange Securities, as equity securities of the case may be. In Company or has a representative serving on the event that board of directors of the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.Company:
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (Aa) (i) Periodically amend the Board Registration Statement (which, for purposes of Directors of this Section 8 shall include a Shelf Registration Statement) so that the Issuer determines in good faith that such action is information contained in the best interests Registration Statement complies with the requirements of Section 10(a) under the Issuer or Act; (ii) such Market-Making if requested by any of the Initial Purchasers and if not otherwise incorporated therein by reference, within 45 days following the end of the Company's most recent fiscal quarter, file a supplement to the Prospectus which sets forth the financial results of the Company for the previous quarter; (iii) amend the Registration Statement, prospectus or amendment Statement or supplement thereto contains an untrue statement of a the Prospectus when necessary to reflect any material fact or omits changes in the information provided therein that are not otherwise incorporated therein by reference; (iv) amend the Registration Statement when required to state a material fact necessary do so in order to make the statements therein, in light comply with Section 10(a)(3) of the circumstances under which they were madeAct as described in Part II, not misleadingItem 22 of the Registration Statement (or in Part II, Item 17 of any registration statement on Form S-3 covering the Securities); and (Bv) comply with the Issuer notifies provisions of the Market-Maker within five days before Act and the effectiveness of such suspension.
(iii) The Issuer shall notify Exchange Act with regard to the Market-Maker foregoing; provided, however, that (A) when a reasonable time prior to filing any post-effective amendment to a Market-Making the Registration Statement or any supplement to the Prospectus, the Company will furnish to the Initial Purchasers copies of all such documents proposed to be filed, which documents will be subject to the review of such Initial Purchasers' counsel and the Initial Purchasers, (B) the Company will not file any post-effective amendment to the Registration Statement or any supplement to the Prospectus to which such Initial Purchasers' counsel or the Initial Purchasers shall reasonably object, and (C) the Company will provide such Initial Purchasers' counsel and the Initial Purchasers with copies of each amendment or supplement to as filed.
(b) Notify the related prospectus Initial Purchasers and, if requested, confirm such advice in writing, (i) when any Prospectus supplement or amendment or post-effective amendment has been filed, and, with respect to any post-effective amendment, when the same has become effective; (Bii) of any request by the SEC Commission for any post-effective amendment or supplement to a Market-Making the Registration Statement, any supplement or amendment to the related prospectus Prospectus or for additional information; (Ciii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of a Market-Making the Registration Statement or the initiation of any proceedings for that purpose; (Div) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (Ev) of the happening of any event that which makes any material statement made in a Market-Making the Registration Statement, the related prospectus Prospectus or any amendment or supplement thereto untrue or that which requires the making of any changes in a Market-Making the Registration Statement, such prospectus the Prospectus or any amendment or supplement thereto, in order to make the statements therein not materially misleading.
(ivc) If Furnish to any event contemplated by Section 4(a)(iii)(B)of the Initial Purchasers, without charge, (Di) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a at least one conformed copy of any post-effective amendment to the applicable Market-Making Registration Statement or an Statement; and (ii) as many copies of any amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingProspectus as each such person may reasonably request.
(vd) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent Consent to the use of the prospectus contained in a Market-Making Registration Statement Prospectus or any amendment or supplement thereto by the Market-Maker Initial Purchasers in connection with its market-making activitiesthe offering and sale of the Securities.
(viiie) Notwithstanding Agree to indemnify the foregoing provisions of this Initial Purchasers, as well as the other indemnified persons referred to in Section 47(a), and if applicable, contribute to the Issuer may for valid business reasonsInitial Purchasers, including without limitationas well as the other indemnified persons referred to in Section 7(a), a potential acquisitionin the manner specified in Section 7 (with appropriate modifications). The Initial Purchasers agree to indemnify the Company against any losses, divestiture of assets claims, damages or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities liabilities (or Securitiesactions in respect thereof) to the extent that any such loss, if applicableclaim, damage or liability (or action in respect thereof) and may issue any notice suspending use arises out of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii)Prospectus, it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement amendment or post-effective amendments and as of the filing date of amendments amendment thereof or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus supplement thereto in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker Initial Purchasers specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, to contribute to the otherlosses, claims, damages or liabilities to which the Company may be subject, in accordance such proportion as is appropriate to reflect the relative benefits received by the Initial Purchasers from the offering of the Securities; provided, however, that in no case shall any Initial Purchaser (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Initial Purchaser, and, if necessary, the relative fault of the Initial Purchaser, determined by reference to whether any alleged untrue statement or omission relates to information provided by the Initial Purchaser. Such indemnification and contribution shall be in the manner specified in Section 7 (with Section 8 of this Agreement.
(f) appropriate modifications). The Issuer Company will comply with the provisions of this Section 4 8 at its own expense.
(g) The agreements contained expense and will reimburse the Initial Purchasers for their reasonable expenses paid or incurred in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales furtherance of the Securitiesoffering, Registrable sale or market-making in the Securities or Exchange Securities, as the case may be, (including reasonable fees and shall remain in full force and effect, regardless disbursements of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 4, any reference counsel to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by referenceInitial Purchasers).
Appears in 1 contract
Samples: Registration Rights Agreement (United States Can Company /De/)
MARKET MAKING. (a) For so long as any of the sole benefit of XxxxxxxSecurities or the Issuer's 9 3/4% senior subordinated notes due May 15, Xxxxx & Co. 2007 (in such capacity, the “Market-Maker”"9 3/4% NOTES") are outstanding and Credit Suisse First Boston LLC or J.P. Morgan Securities Inc. or any of its their respective affiliates (as defined in xxxxxxx xx the rules and regulations of the SEC)Commission) (each, so long as (xin such capacity, a "MARKET-MAKER" and, collectively, the "MARKET-MAKERS") owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsIssuer, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities the 9 3/4% Notes as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer and the Guarantors shall (A) on the date that the Exchange Offer Registration Statement is filed with the Commission, file under the Securities Act one or more registration statementsstatements for the Securities and the 9 3/4% Notes (the "MARKET-MAKING REGISTRATION STATEMENT" and, together with the Shelf Registration Statement and the Exchange Offer Registration Statement, a "REGISTRATION STATEMENT") (which may be the Exchange Offer Registration Statement, the Shelf Registration Statement or the existing shelf registration statement currently in a form approved effect with respect to the 9 3/4% Notes if permitted by the Market-Maker (each such filing, a “Market-Making Registration,” rules and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to regulations of the Commission) and use its their commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Registered Exchange Offer is completed pursuant to Section 2(a) above or (ii) the effective date of the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveStatement, and, in each case, to keep as applicable; (B) periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for so long as or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Maker may be Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any supplement to the registration form used by related prospectus, the Company will furnish to the Market-Makers copies of all such documents proposed to be filed and shall afford the Market-Makers and their counsel a reasonable opportunity to comment on any such documents, (2) the Issuer for and the applicable Guarantors will not file the Market-Making Registration Statement, and the Issuer agrees to furnish any amendment thereto or any supplement to the related prospectus to which a Market-Maker copies of any such supplement or amendment prior to and its being used or promptly following its filing with counsel shall reasonably and timely object unless the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement Company is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, be filed and (B3) the Issuer notifies Company will provide the Market-Maker within five days before Makers and their counsel with copies of the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any and each amendment or and supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(viii) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Makers may reasonably request in order to facilitate the public sale or other disposition of Securities covered thereunder.
(viiiii) The Issuer and the Guarantors shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker Makers in connection with its market-their market making activities.
(viiiiv) Notwithstanding the foregoing provisions of this Section 43, the Issuer and the Guarantors may for valid business reasons, including without limitation, a potential financing, acquisition, divestiture of assets or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) the 9 3/4% Notes and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and issued; provided that the Issuer shall not be obligated to amend or supplement such use of the Market-Making Registration Statement or shall not be suspended for more than 60 days in the prospectus included therein until it reasonably deems appropriateaggregate in any consecutive 12 month period. The Each Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii3(a)(iv), it will forthwith discontinue use of each the Market-Making Registration Statement and the prospectus included therein until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement and the related prospectus may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act (i) will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and (ii) will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided provided, however, that no representation representation, warranty or warranty agreement is made as to information contained in or omitted from a the Market-Making Registration Statement or Statement, the related prospectus or any amendments or supplements thereto in reliance upon and in conformity with written information furnished to the Issuer Company by the any Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the such Market-Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusprospectus (the "MARKET-MAKER'S INFORMATION").
(ec) At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Registered Exchange Offer Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by a Market-Maker) furnish the Market-Makers and their counsel with a certificate of its Chairman of the Board of Directors or Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; (iii) to the knowledge of such officer, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and (iv) such officer has carefully examined the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that such officer makes no certification with respect to the Market-Maker's Information.
(d) The Issuer and the Guarantors, on the one hand, Company and the Market-Maker, on the other hand, Makers hereby agree to indemnify each other, other and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(fe) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 43, any reference to the terms “"amend,” “" "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx & Co. Securities or the New Securities are outstanding and X.X. Xxxxxx Securities Inc. (in such capacity, the “Market-Maker”"MARKET MAKER") or any of its affiliates (as defined in the rules and regulations Affiliates is an Affiliate of the SEC), so long as (x) any of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Company or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities Affiliates and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange the New Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Market Maker:
(i) The Issuer Company shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement is filed with the Commission, file under a registration statement (the Securities Act one "MARKET MAKING REGISTRATION STATEMENT") (which may be the Exchange Offer Registration Statement or more registration statements, in a form approved the Shelf Registration Statement if permitted by the Market-Maker (each such filing, a “Market-Making Registration,” rules and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to regulations of the Commission) and use its commercially reasonable best efforts to cause a Market-such Market Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Registered Exchange Offer is completed pursuant to Section 2(a) above or (ii) the effective date of the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveStatement, and, in each case, to keep as applicable; (B) periodically amend such Market-Market Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at Act; (C) amend the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Market Making Registration Statement continuously effective for so long as or amend or supplement the Market-Maker may be related Prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; PROVIDED, as HOWEVER, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Market Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any supplement to the registration form used by related Prospectus, the Issuer for Company shall furnish to the applicable Market-Market Maker copies of all such documents proposed to be filed, which documents will be subject to the review of the Market Maker and its counsel and (2) the Company will not file any Market Making Registration Statement, any amendment thereto or any amendment or supplement to the related Prospectus to which the Market Maker and its counsel shall reasonably object unless the Company is advised by counsel that such Market Making Registration Statement, amendment or supplement is required to be filed under applicable securities laws and the Issuer agrees to furnish to Company will provide the Market-Market Maker and its counsel with copies of any such Market Making Registration Statement and each amendment and supplement or amendment prior to its being used or promptly following its filing with the SECfiled.
(ii) Notwithstanding The Company shall notify the foregoingMarket Maker and, if requested by the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasonsMarket Maker, but confirm such advice in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if writing, (A) (i) when the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Market Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-the Market Making Registration Statement or any amendment or supplement to the related prospectus Prospectus has been filed, and, with respect to the Market Making Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a Market-the Market Making Registration Statement, any supplement or amendment to the related prospectus Prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a Market-the Market Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange the New Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such that purpose; and (E) of the happening of any event that makes any statement made in a Market-the Market Making Registration Statement, the related prospectus Prospectus or any amendment or supplement thereto untrue or that requires the that making of any changes in a Market-the Market Making Registration Statement, such prospectus Prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D6(a)(ii)(B) and through (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Market Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-such Market Making Registration Statement or an amendment or supplement to the related prospectus Prospectus or file any other required document so that the prospectus Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a Market-the Market Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange the New Securities for sale in any jurisdiction, the Issuer Company shall promptly use its commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the Market-Maker Market Maker, without charge, (A) at least one conformed copy of each Market-the Market Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (B) as many copies of the related prospectus Prospectus and any amendment or supplement theretothereto as the Market Maker may reasonably request.
(viivi) The Issuer Company shall consent to the use of the prospectus any Prospectus contained in a Market-the Market Making Registration Statement or any amendment or supplement thereto by the Market-Market Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 46, the Issuer Company may for valid business reasons, including without limitation, a potential material acquisition, divestiture of assets or other material corporate transaction, issue a notice notify the Market Maker in writing that a Market-the Market Making Registration Statement is no longer effective or the prospectus Prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or the New Securities, if applicable) and may issue any notice suspending ; PROVIDED that the use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Market Making Registration Statement or the prospectus included Prospectus contained therein until it reasonably deems appropriateshall not be suspended for more than 75 days (whether or not consecutive) in the aggregate in any 12-month period. The Market-Market Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii6(a)(vii), it will discontinue use of each Market-the Prospectus contained in the Market Making Registration Statement until receipt of copies of the supplemented or amended prospectus Prospectus relating thereto or until advised in writing by the Issuer Company that the use of a Market-the Prospectus contained in such Market Making Registration Statement may be resumed.
(b) In connection with a Market-the Market Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Market Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Market Maker.; PROVIDED, HOWEVER, that any information that is designated in writing by the Company, in good faith, as confidential at the time of delivery of such information shall be kept confidential by the Market Maker or any representative or counsel, unless such disclosure is made in connection with a court proceeding or required by law, or such information becomes available to the public generally or through a third party without an accompanying obligation of confidentiality;
(c) Prior to the effective date of a Market-the Market Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Company shall arrange, if necessary, for the qualification of the Securities or Exchange the New Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Market Maker reasonably requests in writing and do any and all other acts or things necessary or advisable will maintain such qualification in effect so long as required to enable the offer and sale in such jurisdictions of the Securities and the New Securities covered by such Market-the Market Making Registration Statement; provided PROVIDED that neither in no event shall the Issuer nor any Guarantor will Company be required obligated to (i) qualify generally to do business as a foreign corporation or other entity or as a dealer in securities in any jurisdiction where it is would not then otherwise be required to so qualified or qualify, (ii) file any general consent to take any action which would subject it itself to general service of process in any such jurisdictions or (iii) subject itself to taxation in any such jurisdiction where if it is not then so subject.
(d) The Issuer Company represents and agrees that each Market-the Market Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus Prospectus and any documents filed by them it under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Market Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus Prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; provided PROVIDED that no representation or warranty is made as to information contained in or omitted from a Market-the Market Making Registration Statement or the related prospectus Prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Market Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the Market-Market Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusrelated Prospectus (the "MARKET MAKER'S INFORMATION").
(e) The Issuer At the time of effectiveness of the Market Making Registration Statement and concurrently with each time such Market Making Registration Statement or the related Prospectus shall be amended or such Prospectus shall be supplemented, the Company shall (if requested by the Market Maker) furnish the Market Maker and its counsel with a certificate of its Chairman of the Board of Directors or Chief Executive Officer and its Chief Financial Officer to the effect that:
(i) the Market Making Registration Statement has been declared effective;
(ii) in the case of an amendment to the Market Making Registration Statement, such amendment has become effective under the Act as of the date and time specified in such certificate, if applicable; and in the case of an amendment or supplement to the Prospectus, such amendment or supplement to the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Act specified in such certificate on the date specified therein;
(iii) to the knowledge of such officers, no stop order suspending the effectiveness of such Market Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and
(iv) such officers have carefully examined such Market Making Registration Statement and the GuarantorsProspectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market Making Registration Statement, amendment or supplement, as applicable, the Market Making Registration Statement and the Prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) At the time of effectiveness of the Market Making Registration Statement and concurrently with each time the Market Making Registration Statement or the related Prospectus shall be amended or such Prospectus shall be supplemented, the Company shall (if requested by the Market Maker) furnish the Market Maker and its counsel with the written opinion of counsel for the Company satisfactory to the Market Maker to the effect that:
(i) the Market Making Registration Statement has been declared effective;
(ii) in the case of an amendment to the Market Making Registration Statement, such amendment has become effective under the Act as of the date and time specified in such opinion, if applicable; and in the case of an amendment or supplement to the Prospectus, such amendment or supplement to the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Act specified in such opinion on the date specified therein;
(iii) to the knowledge of such counsel, no stop order suspending the effectiveness of such Market Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and
(iv) such counsel has reviewed such Market Making Registration Statement and the Prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and participated with officers of the Company and independent public accountants for the Company in the preparation of such Market Making Registration Statement and Prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and has no reason to believe that (except for the financial statements and other financial and statistical data contained therein as to which such counsel need express no belief) as of the date of such Market Making Registration Statement, amendment or supplement, as applicable, the Market Making Registration Statement and the Prospectus, as amended or supplemented, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) At the time of effectiveness of the Market Making Registration Statement and concurrently with each time such Market Making Registration Statement or the related Prospectus shall be amended or such Prospectus shall be supplemented to include audited annual financial information, the Company shall (if requested by the Market Maker) furnish the Market Maker and its counsel with a letter of PricewaterhouseCoopers LLP (or other independent public accountants for the Company of nationally recognized standing) in form satisfactory to the Market Maker, addressed to the Market Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) in all other respects, substantially in the form of the letter delivered to the Initial Purchasers pursuant to the Purchase Agreement, with, in the case of an amendment or supplement that includes audited financial information, such changes as may be necessary to reflect the amended or supplemented financial information.
(h) The Company, on the one hand, and the Market-Market Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fi) The Issuer Company will comply with the provisions of this Section 4 6 at its own expenseexpense and will reimburse the Market Maker for its expenses associated with this Section 6 (including reasonable fees of counsel for the Market Maker).
(gj) The agreements contained in this Section 4 6 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and New Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(k) For purposes of this Section 46, (i) any reference to the terms “"amend,” “", "amendment” " or “"supplement” " with respect to the applicable Market-Market Making Registration Statement or the prospectus Prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.reference and (ii) any reference to the terms "Securities" and
Appears in 1 contract
Samples: Registration Rights Agreement (Marquee Holdings Inc.)
MARKET MAKING. (a) For the sole benefit of XxxxxxxGoxxxxx, Xxxxx Saxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SECCommission), so long as (x) any of the Registrable Securities or New Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities or New Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange New Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Issuers shall file under the Securities Act one or more registration statements, in a form to be reasonably approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”) (which may be an Automatic Shelf Registration Statement if the filing satisfies all relevant requirements to qualify as an Automatic Shelf Registration Statement). The Issuer agrees Issuers agree to use its their commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange New Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective effective, subject to Section 4(a)(ii), for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange New Securities, as the case may be; provided that if, as a result of the Commission Announcement and subject to review of the Commission’s release related to such amendments and their effectiveness and the satisfaction of the Rule 144 Eligibility Conditions, the Issuers are therefore not required to file an Exchange Offer Registration Statement or a Shelf Registration Statement, then the Issuers shall use their commercially reasonable efforts to file and have declared effective the Market-Making Registration Statement within 367 days from the Closing Date. In the event that the Market-Maker holds Registrable Securities or Exchange New Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees Issuers agree that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, New Securities and shall use its their commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective effective, subject to Section 4(a)(ii), for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange New Securities, as the case may be. The Issuer Issuers further agrees agree to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Issuers for the applicable Market-Making Registration Statement, and the Issuer agrees Issuers agree to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SECCommission.
(ii) Notwithstanding the foregoing, the Issuer Issuers may suspend the offering and sale under a Market-Making Registration Statement for a period or periods that the Board of Directors of the Issuer Company or ACI reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effective Time of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company or ACI determines in good faith that such action is in the best interests of one or more of the Issuer Issuers or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies Issuers notify the Market-Maker within five three days before the effectiveness of such suspension.
(iii) The Issuer Issuers shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Issuers of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange New Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is Issuers are required to maintain an effective Market-Making Registration Statement, the Issuer Issuers shall use its their commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange New Securities for sale in any jurisdiction, the Issuer Issuers shall use its their commercially reasonable efforts to promptly obtain its withdrawal.
(vi) The Issuer Issuers shall furnish to the Market-Maker Maker, in each case without charge to the Market-Maker, at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, and electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer Issuers shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Issuers may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets assets, financing or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange New Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Issuers shall not be obligated to amend or supplement such the Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Issuers pursuant to this Section 4(a)(viii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto and until advised in writing by the Issuer Issuers that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer Issuers shall (i) make reasonably available for inspection by a representative of, and one counsel acting for, the Market-Maker Maker, at reasonable times and in a reasonable manner, all relevant financial and other records, records and pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its their commercially reasonable best efforts to have its their respective officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker; provided, however, that any information that is designated in writing by the Issuers, in good faith, as confidential at the time of delivery of such information shall be kept confidential by the Market-Maker or any such attorney or accountant, unless such disclosure is made in connection with a court proceeding or required by law, or such information becomes available to the public generally or through a third party without an accompanying obligation of confidentiality.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer Issuers will use its their commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or New Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or New Securities covered by such the Market-Making Registration Statement; provided that neither the no Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents Issuers represent that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all material respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such the Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Issuers by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuers shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.
(f) The Issuers, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 7 of this Agreement.
(fg) The Issuer Issuers will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, New Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For the sole benefit of XxxxxxxMxxxxxx Lynch, Xxxxx Pierce, Fxxxxx & Co. Sxxxx Incorporated (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities or Exchange Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the SecuritiesExisting Notes) to be declared effective on or prior to (i) the date the Exchange Offer Of- fer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, Securities and shall use its commercially reasonable best efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 60 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effective Time of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker Maker, in each case without charge to the Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, and electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities (or Existing Notes, if applicable) covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time such Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuer shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the SecuritiesExisting Notes, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination ter- mination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For The Issuers will, for the sole benefit of Xxxxxxx, Xxxxx & Co. Chase Securities Inc. (in such capacity, the “"Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC"), and for so long as (x) any of the Registrable Securities, Exchange Securities or Private Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to owns any equity securities of Parent or the Registrable Securities Company and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities, Exchange Securities or Private Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer (A) On the date that the Exchange Offer Registration Statements is filed with the Commission, the Issuers shall file under a Registration Statement (which may be the Securities Act one Exchange Offer Registration Statement or more registration statements, in a form approved the Shelf Registration Statement if permitted by the Market-Maker (each such filing, a “Market-Making Registration,” rules and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to regulations of the Commission) and shall use its commercially reasonable best efforts to cause a Market-Making such Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(aOffer; (B) above or (ii) the date the Initial Shelf periodically amend such Registration Statement becomes or is declared effective pursuant so that the information contained therein complies with the requirements of Section 10(a) under the Securities Act; (C) within 45 days following the end of each of the Issuers' fiscal quarters file a supplement to Section 3 above, and, the prospectus contained in each case, to keep such Market-Making the Registration Statement continuously effective that sets forth the financial results of the Issuers for so long as such quarter; (D) amend the Market-Maker may be Registration Statement or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (E) amend the Registration Statement when required to deliver a prospectus do so in connection order to comply with transactions in Section 10(a)(3) of the Registrable Securities Act; provided, however, that (1) prior to filing any post-effective amendment to the Registration Statement or any supplement to the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) aboverelated prospectus, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to Issuers will furnish to the Market-Maker copies of all such documents proposed to be filed, which documents will be subject to the review of the Market-Maker and its counsel, (2) the Issuers will not file any post-effective amendment to the Registration Statement or any supplement to the related prospectus to which the Market-Maker and its counsel shall reasonably object unless the Issuers are advised by counsel that such post-effective amendment or supplement is required to be filed and (3) the Issuers will provide the Market-Maker and its counsel with copies of each amendment or amendment prior to its being used or promptly following its filing with the SECsupplement filed.
(ii) Notwithstanding If at any time the foregoingIssuers become no longer eligible to use Form S-3 under the Securities Act with respect to sales of the Securities, Exchange Securities or Private Exchange Securities, file a post-effective amendment to the Issuer may suspend the offering and sale under a Market-Making Registration Statement for to convert it to a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue Form S-1 registration statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspensionas soon as practicable.
(iii) The Issuer shall notify Notify the Market-Maker Maker, and (if requested by the Market-Maker) confirm such advice in writing, (A) when any post-effective amendment to a Market-Making the Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a Market-Making the Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a Market-Making the Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Issuers of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making the Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making the Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading; and (F) of any advice from a nationally recognized statistical rating organization that such organization has placed Parent or the Company under surveillance or review with negative implications or has determined to downgrade the rating of the Securities, Exchange Securities or Private Exchange Securities or any other debt obligation of Parent or the Company whether or not such downgrade shall have been publicly announced.
(iv) If any event contemplated by Section 4(a)(iii)(B)Furnish to the Market-Maker, without charge, (Di) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a at least one conformed copy of any post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Statement; and (vii) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viiv) The Issuer shall consent Consent to the use of the prospectus contained in a Market-Making the Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activitiesthe offering and sale of the Securities.
(viiivi) Notwithstanding For so long as the foregoing provisions Securities, Exchange Securities or Private Exchange Securities shall be outstanding, furnish to the Market-Maker (A) as soon as practicable after the end of this Section 4each of the Issuers' fiscal years, the Issuer may number of copies reasonably requested by the Market-Maker of the Issuers' annual report to stockholders for valid business reasonssuch year, including (B) as soon as available, the number of copies reasonably requested by the Market-Maker of each report (including, without limitation, a potential acquisitionReports on Forms 10-K, divestiture 10-Q, and 8-K) or definitive proxy statements of assets the Issuers filed under the Exchange Act or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective mailed to stockholders and (C) all public reports and all reports and financial statements furnished by the Issuers to the Nasdaq National Market System or any U.S. national securities exchange or quotation service upon which the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities may be listed pursuant to requirements of or agreements with such exchange or quotation service or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder.
(or Securities, if applicablevii) and may issue In the event of the issuance of any notice stop order suspending use the effectiveness of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from order suspending the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies qualification of the supplemented Securities, Exchange Securities or amended prospectus relating thereto until advised Private Exchange Securities for sale in writing by the Issuer that the any jurisdiction, to use of a Market-Making Registration Statement may be resumedpromptly its best efforts to obtain its withdrawal.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided The Issuers represent that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments theretoto the Registration Statement, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making the Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Issuers by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectus.
(c) Each time that the Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, each Issuer shall (if requested by the Market-Maker), concurrently which such amendment or supplement, furnish the Market-Maker and its counsel with a certificate of its Chairman of the Board or its President and its chief financial officer to the effect that:
(i) The Registration Statement has been declared effective and such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable, such amendment to the prospectus (or such supplement to the prospectus, as the case may be) was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and, to the knowledge of such officers, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and
(ii) Such officers have carefully examined the Registration Statement and the prospectus and such amendment or supplement thereto and as of the date of such amendment or supplement, the Registration Statement and the prospectus, as amended or supplemented, as the case may be, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) Each time that the Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuers shall (if requested by the Market-Maker), concurrently with such amendment or supplement, furnish the Market-Maker and its counsel with the written opinion of counsel for the Issuers satisfactory to the Market-Maker to the effect that;
(i) The Registration Statement has been declared effective and such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable, such amendment to the prospectus (or such supplement to the prospectus, as the case may be) was filed with the Commission pursuant to the subparagraph Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and
(ii) Counsel for the Issuers has reviewed such amendment or supplement and participated with officers of the Issuers and independent public accountants for the Issuers in the preparation of such amendment or supplement and has no reason to believe that the Registration Statement (or any post-effective amendment thereto), at the time of its effective date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Issuer Each time that the Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented to include audited annual financial information, the Issuers shall (if requested by the Market-Maker), concurrently with such amendment or supplement, furnish the Market-Maker and its counsel with a letter of Deloitte & Touche LLP (or other independent public accountants for the GuarantorsIssuers of nationally recognized standing), on the one hand, and in form satisfactory to the Market-Maker, on addressed to the other handMarket-Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) a letter substantially in the form of the letter delivered to the Initial Purchasers pursuant to Section 5(f) of the Purchase Agreement with such changes as may be necessary to reflect the amended or supplemented financial information.
(f) The Issuers hereby agree to indemnify each otherthe Market-Maker, and, if applicable, contribute to the otherMarket-Maker, in accordance with Section 7 and 8 of this Agreement.
(fg) The Issuer Issuers will comply with the provisions of this Section 4 6 at their own expense and will reimburse the Market-Maker for its own expenseexpenses associated with this Section 6 (including fees of counsel).
(gh) The agreements contained in this Section 4 6 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 46, any reference to the terms “"amend,” “", "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Lpa Services Inc)
MARKET MAKING. (aExcept for shares already covered by Section 7(a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities are outstanding and (yb) it would be necessary under applicable lawsabove, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions E Group shall apply for the sole benefit of the Market-Maker:
(i) The Issuer shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have direct all secondary market orders with respect to each security for which Wit acts as market maker, to Wit Group from the time that Wit notifies E Group that it is properly registered and prepared to commence making a market in such Market-Making Registration Statement also cover security until Wit Group ceases making a market in such security. Except for shares already covered by Section 7(a) and (b) above, Wit Group shall pay to E Group a trading flow rebate (currently $**** per share for all shares directed to Wit Group (the Securities"Blended Rate)). The parties agree to review the Blended Rate at least quarterly and to negotiate in good faith adjustments to the Blended Rate to ensure that the Blended Rate remains competitive with the highest trading flow rebate or other consideration received by E Group for similar types and sizes of orders from the two market makers, electronic communication networks, securities exchanges or other securities trading markets other than Wit Group ("Market Centers") to be declared effective on or prior which E Group routes the largest and second largest number of secondary market orders for execution during the immediately preceding quarter. Notwithstanding anything herein to the contrary, E Group and Wit Group understand and agree that (i) no provision of this Agreement shall restrict the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, andother, in each caseits reasonable good faith judgment, from taking, without liability to the other, any action required by any rule or regulation of the SEC, any self-regulatory organization or any governmental entity to which it is subject, or from complying with any fiduciary duties to its customers, provided that it shall, prior to taking such action, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer extent reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, feasible in light of the circumstances under which they were madethen circumstances, not misleading, and (B) notify the Issuer notifies the Market-Maker within five days before the effectiveness other of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to action prior to, or within a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filedreasonable time after taking such action, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or following the Market-Maker.
thirty (c30) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as month anniversary of the effective date of such Market-Making Registration Statement or post-effective amendments and as time of the filing date of amendments Merger, E Group or supplements to such prospectus or filings Wit Group may each release itself thereafter from the obligations under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance this Section 7(c) upon and in conformity with 180 days' written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute notice to the other, in accordance with Section 8 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Strategic Alliance Agreement (Wit Soundview Group Inc)
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx & Co. Securities are outstanding and either CSFBL or JPMorgan (each in such capacity, the a “Market-Maker”) or any of its their respective affiliates (as defined in the rules and regulations of the SEC), so long as (xCommission) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsIssuer, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the each Market-Maker:
(i) The Issuer shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement, is filed with the Commission, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to ) (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the Commission) and use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Registered Exchange Offer is completed pursuant to Section 2(a) above or (ii) the effective date of the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveStatement, and, in each case, to keep as applicable; (B) periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for so long as or amend or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Maker may be Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any amendment or supplement to the registration form used by related prospectus, the Issuer for Company will furnish to each Market-Maker copies of all such documents proposed to be filed, which documents will be subject to the applicable review of each Market-Maker and its counsel, (2) the Company will not file the Market-Making Registration Statement, and the Issuer agrees to furnish any amendment thereto or any supplement to the related prospectus to which any Market-Maker copies of any such supplement or amendment prior to and its being used or promptly following its filing with counsel shall reasonably object unless the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement Company is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make the statements therein, in light of the circumstances be filed under which they were made, not misleading, applicable securities laws and (B3) the Issuer notifies Company will provide each Market-Maker and its counsel with copies of the Market-Maker within five days before Making Registration Statement, the effectiveness of such suspensionrelated prospectus and each amendment and supplement thereto filed.
(iiiii) The Issuer Company shall notify the each Market-Maker and, if requested by such Market-Maker, confirm such advice in writing, (A) when any Market-Making Registration Statement, any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any Market-Making Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D4(a)(ii)(B) and through (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use its commercially promptly their reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the each Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as such Market-Maker may reasonably request.
(viivi) The Issuer Company shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the each Market-Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential material acquisition, divestiture of assets or other material corporate transaction, issue a notice notify each Market-Maker in writing that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending ; provided that the use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or prospectus contained therein shall not be suspended for more than 60 days (whether or not consecutive) in the prospectus included therein until it reasonably deems appropriateaggregate. The Each Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii4(a)(vii), it will discontinue use of each the prospectus contained in the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the prospectus contained in the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the each Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer will Company shall use its commercially reasonable best efforts to register or qualify such Registrable the Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or “blue sky sky” laws of such jurisdictions as the each Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will Company shall not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer Company represents and agrees that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the any Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the such Market-Maker to be set forth on the cover page and page, in the “Plan of Distribution” section and in the analogous sections of the prospectusCanadian wrapper, if any, of the prospectus (the “Market-Maker’s Information”).
(e) The At the time of effectiveness of the Market-Making Registration Statement and concurrently each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuer shall (if requested by a Market-Maker) furnish such Market-Maker and its counsel with a certificate of its President or any Vice President and a principal financial or accounting officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment to the Market-Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; in the case of an amendment or supplement to the prospectus, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; (iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; (iv) such officers have carefully examined the Market-Making Registration Statement and the Guarantorsprospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, prospectus, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) At the time of effectiveness of the Market-Making Registration Statement and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by a Market-Maker) furnish such Market-Maker and its counsel with the written opinion of counsel for the Company reasonably satisfactory to such Market-Maker to the effect that (subject to customary assumptions, qualifications and exceptions):
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment to the Market-Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such opinion, if applicable; in the case of an amendment or supplement to the prospectus, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; (iii) to the knowledge of such counsel, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and (iv) such counsel has reviewed the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and participated with officers of the Company and independent public accountants for the Company in the preparation of such Market-Making Registration Statement and prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and has no reason to believe that (except for the financial statements and other financial and statistical data contained therein as to which such counsel need express no belief) as of the date of such Market-Making Registration Statement, prospectus, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, contained any untrue statement of a material fact or omitted 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.
(g) At the time of effectiveness of the Market-Making Registration Statement and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented to include audited annual financial information, the Company shall (if requested by a Market-Maker) furnish such Market-Maker and its counsel with a letter of PricewaterhouseCoopers LLP (or other independent public accountants for the Company of nationally recognized standing) in form reasonably satisfactory to such Market-Maker, addressed to such Market-Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-0 1 of Regulation S-X of the Commission and, (ii) in all other respects, substantially in the form of the letters delivered to the Initial Purchasers pursuant to Sections 6(a) and 6(i) of the Purchase Agreement, with, in the case of an amendment or supplement to include audited financial information, such changes as may be reasonably necessary to reflect the amended or supplemented financial information.
(h) The Company, on the one hand, and the each Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(gi) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 cancelation of this Agreement or any investigation made by or on behalf of any indemnified party. .
(j) For purposes of this Section 4, (i) any reference to the terms “amend,” ”, “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by referencereference and (ii) any reference to the term “Securities” shall be deemed to refer to and include any securities issued in exchange for or with respect to such Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Warner Chilcott CORP)
MARKET MAKING. (a) For The Issuers will, for the sole benefit of XxxxxxxChase Securities Inc. (the "Market Maker"), Xxxxx & Co. (in such capacity, and for so long as any of the “Market-Maker”) Notes are outstanding and the Market Maker or any of its affiliates Affiliates (as defined in the rules and regulations of the SEC), so long as (xSEC under the Securities Act) owns any equity securities of the Registrable Securities are outstanding Company and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities Notes as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(iA) The Issuer shall file Periodically amend the Registration Statement so that the information contained in the Registration Statement complies with the requirements of Section 19(a) under the Securities Act one or more registration statements, in a form approved Act; (B) if requested by the Market-Maker Market Maker, within 45 days following the end of the Company's most recent fiscal quarter, file a supplement to the Prospectus which sets forth the financial results of the Company for the previous quarter; (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable efforts to cause a Market-Making C) amend the Registration Statement with respect or supplement the Prospectus when necessary to reflect any material changes in the Exchange Securities information provided therein; and (and, upon reasonable request by D) amend the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be when required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for do so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light comply with Section 10(a)(3) of the circumstances under which they were madeSecurities Act; provided, not misleadinghowever, and that (B1) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when prior to filing any post-effective amendment to a Market-Making the Registration Statement or any supplement to the Prospectus, the Company will furnish to the Market Maker copies of all such documents proposed to be filed, which documents will be subject to the review of the Market Maker and its counsel, (2) the Issuers will not file any post-effective amendment to the Registration Statement or any supplement to the Prospectus to which the Market Maker and its counsel shall reasonably object by notice to the Company after a reasonable period to review unless the Company is advised by counsel that such amendment or supplement is legally required and (3) the Company will provide the Market Maker and its counsel with copies of each amendment or supplement filed.
(ii) Notify the Market Maker, and (if requested by the Market Maker) confirm such advice in writing, (A) when any Prospectus supplement or amendment or post-effective amendment to the related prospectus Registration Statement has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making the Registration Statement, any supplement or amendment to the related prospectus Prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making the Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the any Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities Notes for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening occurrence of any event that which makes any statement made in a Market-Making the Registration Statement, the related prospectus Prospectus or any amendment or supplement thereto untrue or that which requires the making of any changes in a Market-Making the Registration Statement, such prospectus the Prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading; and (F) of any advice from a nationally recognized statistical rating organization that such organization has placed the Company under surveillance or review with negative implications or has determined to downgrade the rating of the Notes or any other debt obligation of the Company whether or not such downgrade shall have been publicly announced.
(iviii) If any event contemplated by Section 4(a)(iii)(B)Furnish to the Market Maker, without charge, (Di) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a at least one conformed copy of any post-effective amendment to the applicable Market-Making Registration Statement or an Statement; and (ii) as many copies of any amendment or supplement to the related prospectus or file any other required document so that Prospectus as the prospectus will not include an untrue statement of a material fact or omit Market Maker may reasonably request.
(iv) Consent to state a material fact necessary in order to make the statements therein, in the light use of the circumstances under which they were made, not misleadingProspectus or any amendment or supplement thereto by the Market Maker in connection with the offering and sale of the Notes.
(v) For so long as the Notes shall be outstanding, furnish to the Market Maker (A) as soon as practicable after the end of each fiscal year, the number of copies reasonably requested by the Market Maker of the Company's annual report to stockholders for such year, (B) as soon as available, the number of copies reasonably requested by the Market Maker of each report (including, without limitation, Reports on Forms 10-K, 10-Q and 8-K) or definitive proxy statements of the Company filed under the Exchange Act or mailed to stockholders and (C) all public reports and all reports and financial statements furnished by the Company to the Nasdaq National Market System or any U.S. national securities exchange or quotation service upon which the Notes may be listed pursuant to requirements of or agreements with such exchange or quotation service or to the SEC pursuant to the Exchange Act or any rule or regulation of the SEC thereunder.
(vi) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making the Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities Notes for sale in any jurisdiction, the Issuer shall to use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vib) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice Issuers represent that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments theretoto the Registration Statement, any amendments or supplements to the related prospectus Prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus the Prospectus or filings under the Exchange Act, Act contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided provided, however, that no representation or warranty is made as to information contained in or omitted from a Market-Making the Registration Statement or the related prospectus Prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Market Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the Market-Market Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusProspectus.
(c) Each time that the Registration Statement or Prospectus shall be amended or the Prospectus shall be supplemented, the Company shall, concurrently with such amendment or supplement, furnish the Market Maker and its counsel with a certificate of its President or any Vice-President and its chief financial or accounting officer to the effect that:
(i) The Registration Statement has been declared effective and such amendment has become effective under the Securities Act as of the date and time specified in such certificate; such amendment to the Prospectus (or such supplement to the Prospectus, as the case may be) was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and, to the knowledge of such officers, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(ii) Such officers have carefully examined the Registration Statement and the Prospectus and such amendment or supplement thereto and, in their opinion, as of the date of such amendment or supplement, the Registration Statement and the Prospectus, as amended or supplemented, as the case may be, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of the Prospectus, in light of the circumstances in which they were made.
(d) Each time that the Registration Statement or Prospectus shall be amended, the Issuers, if reasonably requested by the Market Maker, shall, concurrently with such amendment, furnish to the Market Maker and its counsel (at the expense of the Market Maker) the written opinion of counsel for the Issuers satisfactory to the Market Maker to the effect that:
(i) The Registration Statement has been declared effective and such amendment has become effective under the Securities Act, as of the date and time specified in such certificate; such amendment to the Prospectus was filed with the SEC pursuant to the subparagraph Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened in writing by the SEC; and
(ii) Counsel for the Issuers has reviewed such amendment and participated with the officers of the Issuers and independent public accountants for the Issuers in the preparation of such amendment and has no reason to believe that the Registration Statement (or any post-effective amendment thereto), at the time of its effective date, contained any untrue statement of a material fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Issuer and Each time that the GuarantorsRegistration Statement or Prospectus shall be amended to include audited annual financial information, on the one handCompany, and if requested by the Market-Market Maker, on shall, concurrently with such amendment, furnish the Market Maker and its counsel with a letter of Price Waterhouse, LLP (or other handindependent public accountants for the Issuers of nationally recognized standing), in form satisfactory to the Market Maker, addressed to the Market Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the SEC and (ii) a letter substantially in the form of the letter delivered to the Initial Purchasers pursuant to Section5(f) of the Purchase Agreement with such changes as may be necessary to reflect the amended financial information.
(f) The Issuers hereby agree to indemnify each otherthe Market Maker, and, and if applicable, contribute to the otherMarket Maker, in accordance with Section 8 7 of this Agreement.
(fg) The Issuer Issuers will comply with the provisions of this Section 4 10 at its their own expense.
(gh) The agreements contained in this Section 4 10 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, Notes and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 410, any reference to the terms “"amend,” “", "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein Prospectus shall be deemed to refer to and include the filing under the Exchange Act on or after the date the Registration Statement is converted to Form S-3 of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities or Exchange Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees Company and the Guarantors agree to use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer Company and the Guarantors will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the SecuritiesExisting Notes) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer Company agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, Securities and shall use its commercially reasonable best efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Market- Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer Company further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for the applicable Market-Making Registration Statement, and the Issuer Company agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer Company may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer Company reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 60 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effective Time of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company determines in good faith that such action is in the best interests of the Issuer Company or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer Company notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vi) The Issuer Company shall furnish to the Market-Maker Maker, in each case without charge to the Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, and electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer Company shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer Company that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer Company will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities (or Existing Notes, if applicable) covered by such Market-Making Registration Statement; provided that neither the Issuer Company nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time such Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company, on the one hand, and the Market-Maker, on the other hand, hereby agree agrees to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the SecuritiesExisting Notes, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. Credit Suisse First Boston Corporation (in such capacity, the “"Market-Maker”") or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for as the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to owns any equity securities of the Registrable Securities Company, the Guarantors or any of their affiliates and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary coursecourse and (z) in the reasonable opinion of the Market-Maker's counsel, a market making prospectus would be required for the Market Maker to make a market in the Registrable Securities or Exchange Securities in the ordinary course under applicable law or SEC interpretation of law, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company and the Guarantors shall (A) on the date that the Exchange Offer Registration Statement is filed with the SEC, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “"Market-Making Registration Statement”). The Issuer agrees to ") (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the SEC) and use its commercially their reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the SEC on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(aOffer; (B) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Making Registration Statement when required to do so long as in order to comply with Section 10(a)(3) of the Securities Act; provided, however, that the Company will provide the Market-Maker may be required to deliver a prospectus in connection and its counsel with copies of the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as Statement and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, each amendment and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SECfiled.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D5(a)(ii)(B) and through (E) occurs during the period for which the Issuer is Company and the Guarantors are required to maintain an effective Market-Making Registration Statement, the Issuer Company and the Guarantors shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company and the Guarantors shall use its promptly their commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viivi) The Issuer Company and the Guarantors shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 45, the Issuer Company and the Guarantors may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such the Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii5(a)(vii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer Company and the Guarantors will use its commercially their reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor Company and the Guarantors will not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer Company represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusprospectus (the "Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of its Chairman of the Board of Directors or Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein;
(iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(iv) such officers have carefully examined the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supple- mented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer Company and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 5 at its own expenseexpense and will reimburse the Market-Maker for its expenses associated with this Section 5 (including reasonable fees of counsel).
(gh) The agreements contained in this Section 4 5 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 45, any reference to the terms “"amend,” “" "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Registration Rights Agreement (Er Acquisition Corp)
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. Credit Suisse First Boston LLC (in such capacity, the “"Market-Maker”") or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for as the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to owns any equity securities of the Registrable Securities Company, the Guarantors or any of their affiliates and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary coursecourse and (z) in the reasonable opinion of the Market-Maker's counsel, a market making prospectus would be required for the Market Maker to make a market in the Registrable Securities or Exchange Securities in the ordinary course under applicable law or SEC interpretation of law, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company and the Guarantors shall (A) on the date that the Exchange Offer Registration Statement is filed with the SEC, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “"Market-Making Registration Statement”). The Issuer agrees to ") (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the SEC) and use its commercially their reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the SEC on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(aOffer; (B) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Making Registration Statement when required to do so long as in order to comply with Section 10(a)(3) of the Securities Act; provided, however, that the Company will provide the Market-Maker may be required to deliver a prospectus in connection and its counsel with copies of the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as Statement and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, each amendment and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SECfiled.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D5(a)(ii)(B) and through (E) occurs during the period for which the Issuer is Company and the Guarantors are required to maintain an effective Market-Making Registration Statement, the Issuer Company and the Guarantors shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company and the Guarantors shall use its promptly their commercially reasonable best efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viivi) The Issuer Company and the Guarantors shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 45, the Issuer Company and the Guarantors may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such the Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii5(a)(vii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer Company and the Guarantors will use its commercially their reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor Company and the Guarantors will not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer Company represents that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “"Plan of Distribution” " section of the prospectusprospectus (the "Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of its Chairman of the Board of Directors or Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein;
(iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(iv) such officers have carefully examined the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer Company and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 5 at its own expenseexpense and will reimburse the Market-Maker for its expenses associated with this Section 5 (including reasonable fees of counsel).
(gh) The agreements contained in this Section 4 5 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 45, any reference to the terms “"amend,” “" "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. (each in such capacity, a “Market-Maker” and together, the “Market-MakerMakers”) or any of its their respective affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Existing Notes, Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the a Market-Maker, for the such Market-Maker or any of its affiliates to deliver a prospectus Prospectus in connection with market-making activities with respect to the Existing Notes, Registrable Securities or Exchange Securities and the such Market-Maker or such affiliate proposes to make a market in the Existing Notes, Registrable Securities or Exchange Securities as part of its business in the ordinary coursecourse (the “Market-Making Conditions”), the following provisions shall apply for the sole benefit of such Market-Maker (it being understood that only a person for whom the Market-Maker:Making Conditions apply at the applicable time shall be deemed a Market-Maker for purposes of the following provisions at any time):
(i) The Issuer shall file under the Securities Act one or more registration statements, in a form approved by the each Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer agrees to use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such which Market-Making Registration Statement will also cover the Securitiesany outstanding Existing Notes at such time) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the either Market-Maker may be required to deliver a prospectus Prospectus in connection with transactions in Registrable Securities or the Exchange Securities (or the Existing Notes, to the extent that such Market-Making Registration Statement covered the Existing Notes), as the case may be; provided that the Issuer shall not be required to have a Market-Making Registration Statement covering only the Existing Notes be declared effective within the timeframe described above if the Registrable Securities and Exchange Securities cease to be outstanding within such timeframe. If a Market-Making Registration Statement covering the Existing Notes is not required to be declared effective because the Registrable Securities and Exchange Notes are no longer outstanding, the Issuer agrees to use its reasonable best efforts to cause a Market-Making Registration Statement covering any then outstanding Existing Notes to become effective on or prior to the date any first registration statement on Form S-1 or Form S-4 covering any securities of the Issuer filed after the date hereof (any such registration statement, the “First Alternate Registration”) becomes effective and to keep such Market-Making Registration Statement continuously effective for so long as either Market-Maker may be required to deliver a Prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may beExisting Notes. In the event that the a Market-Maker holds Registrable Securities Existing Notes or Exchange Securities at the earlier of the time the Exchange Offer is to be conducted under Section 2(a) aboveabove or the time of the First Alternate Registration, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the such Market-Maker of such Existing Notes, Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable best efforts to keep the Market-Making Registration Statement continuously effective for so long as the such Market-Maker may be required to deliver a prospectus Prospectus in connection with the sale of such Existing Notes, Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the each Market-Maker copies of any such supplement or amendment or any Issuer Free Writing Prospectus prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 60 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time Effective Time of such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus Prospectus, Issuer Free Writing Prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the each Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the each Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus Prospectus or any Issuer Free Writing Prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus Prospectus, any Issuer Free Writing Prospectus or for additional information; (C) of the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities (or, the Existing Notes if they were covered by the Market-Making Registration Statement), for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus Prospectus, such Issuer Free Writing Prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus Prospectus or Issuer Free Writing Prospectus or file any other required document so that the prospectus Prospectus or Issuer Free Writing Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities (or Existing Notes if they were covered by the Market-Making Registration Statement) for sale in any jurisdiction, the Issuer shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the each Market-Maker Maker, in each case without charge to each Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto andthereto, if not available on XXXXX, any Issuer Free Writing Prospectus and electronic copies of the related prospectus Prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus Prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto or any Issuer Free Writing Prospectus by the a Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus Prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, Existing Notes if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus Prospectus included therein until it reasonably deems appropriate. The Each Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus Prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker Makers all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-MakerMakers.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable best efforts to register or qualify such Registrable Securities, Exchange Securities or Exchange Securities (or Securities, if applicable)Existing Notes, as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker Makers reasonably requests request in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities, Exchange Securities or Existing Notes covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents and agrees that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus Prospectus, any Issuer Free Writing Prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus Prospectus, any Issuer Free Writing Prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus Prospectus in reliance upon and in conformity with written information furnished to the Issuer by the a Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the such Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectusProspectus and in the analogous section of the Canadian wrapper, if any, of the Prospectus.
(e) At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time any Issuer Free Writing Prospectus is first used or such Market-Making Registration Statement or the related Prospectus or Issuer Free Writing Prospectus shall be amended or such Prospectus or Issuer Free Writing Prospectus shall be supplemented, the Issuer shall (if requested in writing by a Market-Maker) furnish such Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the Prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and in the case of any Issuer Free Writing Prospectus or an amendment or supplement to any Issuer Free Writing Prospectus, such Issuer Free Writing Prospectus or amendment or supplement to the Issuer Free Writing Prospectus was filed with the SEC pursuant to Rule 433 under the Securities Act on the date specified therein;
(iii) to the knowledge of such officer, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(iv) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Issuer and the GuarantorsIssuer, on the one hand, and the each Market-MakerMaker severally but not jointly, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as Securities (or the case may be, Existing Notes if they were covered by the Market-Making Registration Statement) and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus Prospectus contained therein or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx & Co. Securities or Exchange Securities are outstanding and X.X. Xxxxxx Securities Inc. (in such capacity, the “Market-Market Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsIssuers, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Market Maker:
(i) The Issuer Issuers and the Guarantors shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement is filed with the SEC, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “Market-Market Making Registration Statement”). The Issuer agrees to ) (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the SEC) and use its commercially their reasonable efforts to cause a Market-such Market Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the SEC on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the effective date of the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 aboveStatement, and, in each case, to keep as applicable; (B) periodically amend such Market-Market Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at information contained therein complies with the time requirements of Section 10(a) under the Exchange Offer is to be conducted under Section 2(a1933 Act and (C) above, amend the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Market Making Registration Statement continuously effective for so long as or amend or supplement the Market-Maker may be required related Prospectus when necessary to deliver a prospectus reflect any material changes in connection with the sale of such Registrable Securities or Exchange Securitiesinformation provided therein; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Market Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any supplement to the registration form used by related Prospectus, the Issuer for Issuers will furnish to the applicable Market-Market Maker copies of all such documents proposed to be filed, which documents will be subject to the review of the Market Maker and its counsel and (2) the Issuers and the Guarantors will not file the Market Making Registration Statement, any amendment thereto or any amendment or supplement to the related Prospectus to which the Market Maker and its counsel shall reasonably object unless the Issuers are advised by counsel that such Market Making Registration Statement, amendment or supplement is required to be filed under applicable securities laws and the Issuer agrees to furnish to Issuers will provide the Market-Market Maker and its counsel with copies of any such the Market Making Registration Statement, the related Prospectus and each amendment and supplement or amendment prior to its being used or promptly following its filing with the SECthereto filed.
(ii) Notwithstanding The Issuers shall notify the foregoingMarket Maker and, if requested by the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasonsMarket Maker, but confirm such advice in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if writing, (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-when any Market Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-the Market Making Registration Statement or any amendment or supplement to the related prospectus Prospectus has been filed, and, with respect to any Market Making Registration Statement or any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-the Market Making Registration Statement, any supplement or amendment to the related prospectus Prospectus or for additional information; (C) of the issuance by the SEC of any stop order suspending the effectiveness of a Market-the Market Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Issuers of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-the Market Making Registration Statement, the related prospectus Prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-the Market Making Registration Statement, such prospectus Prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D6(a)(ii)(B) and through (E) occurs during the period for which the Issuer is Issuers and the Guarantors are required to maintain an effective Market-Market Making Registration Statement, the Issuer Issuers and the Guarantors shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Market Making Registration Statement or an amendment or supplement to the related prospectus Prospectus or file any other required document so that the prospectus Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a Market-the Market Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Issuers and the Guarantors shall promptly use its commercially their reasonable efforts to obtain its withdrawal.
(viv) The Issuer Issuers shall furnish to the Market-Maker Market Maker, without charge, (i) at least one conformed copy of each Market-the Market Making Registration Statement and any post-post effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus Prospectus and any amendment or supplement theretothereto as the Market Maker may reasonably request.
(viivi) The Issuer Issuers and the Guarantors shall consent to the use of the prospectus Prospectus contained in a Market-the Market Making Registration Statement or any amendment or supplement thereto by the Market-Market Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 46, the Issuer Issuers and the Guarantors may for valid business reasons, including without limitation, a potential material acquisition, divestiture of assets or other material corporate transaction, issue a notice notify the Market Maker in writing that a Market-the Market Making Registration Statement is no longer effective or the prospectus Prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending ; provided that the use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Market Making Registration Statement or the prospectus included Prospectus contained therein until it reasonably deems appropriateshall not be suspended for more than 60 days (whether or not consecutive) in the aggregate in any 12-month period. The Market-Market Maker agrees that upon receipt of any notice from the Issuer Issuers pursuant to this Section 4(a)(viii6(a)(vii), it will discontinue use of each Market-the Prospectus contained in the Market Making Registration Statement until receipt of copies of the supplemented or amended prospectus Prospectus relating thereto or until advised in writing by the Issuer Issuers that the use of a Market-the Prospectus contained in the Market Making Registration Statement may be resumed.
(b) In connection with a Market-the Market Making Registration Statement, the Issuer Issuers shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Market Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Issuers and its their subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Market Maker.
(c) Prior to the effective date of a Market-the Market Making Registration Statement, the Issuer will Issuers and the Guarantors shall use its commercially their reasonable efforts to register or qualify such Registrable the Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Market Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities or Exchange Securities covered by such Market-the Market Making Registration Statement; provided that neither the Issuer nor any Guarantor will Issuers and the Guarantors shall not be required to (i) qualify generally to do business as a foreign corporation or other entity or as a dealer in securities in any jurisdiction where it is would not then otherwise be required to so qualified or qualify, (ii) file any general consent to take any action which would subject it itself to general service of process in any such jurisdictions or (iii) subject itself to taxation in any such jurisdiction where if it is not so then so subject.
(d) The Issuer represents Issuers and the Guarantors represent and agree that each Market-the Market Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus Prospectus and any documents filed by them under the Exchange 1934 Act will, when they become effective or are filed with the SEC, as the case may be, conform in all material respects to the requirements of the Securities 1933 Act and the Exchange 1934 Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Market Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus Prospectus or filings under the Exchange 1934 Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-the Market Making Registration Statement or the related prospectus Prospectus in reliance upon and in conformity with written information furnished to the Issuer Issuers by the Market-Market Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Market Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectusProspectus (the “Market Maker’s Information”).
(e) At the time of effectiveness of the Market Making Registration Statement and concurrently with each time the Market Making Registration Statement or the related Prospectus shall be amended or such Prospectus shall be supplemented, the Issuers shall (if requested by the Market Maker) furnish the Market Maker with a certificate of its Chief Executive Officer or any Senior Vice President and its Chief Financial Officer to the effect that:
(i) the Market Making Registration Statement has been declared effective;
(ii) in the case of an amendment to the Market Making Registration Statement, such amendment has become effective under the 1933 Act as of the date and time specified in such certificate, if applicable; and in the case of an amendment or supplement to the Prospectus, such amendment or supplement to the Prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the 1933 Act specified in such certificate on the date specified therein;
(iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(iv) such officers have examined the Market Making Registration Statement and the Prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and, to the knowledge of such officers, as of the date of such Market Making Registration Statement, Prospectus, amendment or supplement, as applicable, the Market Making Registration Statement and the Prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) At the time of effectiveness of the Market Making Registration Statement and concurrently with each time the Market Making Registration Statement or the related Prospectus shall be amended or such Prospectus shall be supplemented, the Issuers shall (if requested by the Market Maker) furnish the Market Maker with the written opinion of counsel for the Issuers satisfactory to the Market Maker to the effect that:
(i) the Market Making Registration Statement has been declared effective;
(ii) in the case of an amendment to the Market Making Registration Statement, such amendment has become effective under the 1933 Act as of the date and time specified in such opinion, if applicable; and in the case of an amendment or supplement to the Prospectus, such amendment or supplement to the Prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the 1933 Act specified in such opinion on the date specified therein;
(iii) to the knowledge of such counsel, no stop order suspending the effectiveness of the Market Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the SEC; and
(iv) such counsel has reviewed the Market Making Registration Statement and the Prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and participated with officers of the Issuers and independent public accountants for the Issuers in the preparation of such Market Making Registration Statement and Prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and has no reason to believe that (except for the financial statements and other financial and statistical data contained therein as to which such counsel need express no belief) as of the date of such Market Making Registration Statement, Prospectus, amendment or supplement, as applicable, the Market Making Registration Statement and the Prospectus, as amended or supplemented, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) At the time of effectiveness of the Market Making Registration Statement and concurrently with each time the Market Making Registration Statement or the related Prospectus shall be amended or such Prospectus shall be supplemented to include audited annual financial information, the Issuers shall (if requested by the Market Maker) furnish the Market Maker and its counsel with a letter of Deloitte & Touche LLP (or other independent public accountants for the Issuers or the Guarantors of nationally recognized standing) in form satisfactory to the Market Maker, addressed to the Market Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the 1933 Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the SEC and (ii) in all other respects, substantially in the form of the letter delivered to the Initial Purchasers pursuant to Section 5(e) of the Placement Agreement, with, in the case of an amendment or supplement that includes audited financial information, such changes as may be necessary to reflect the amended or supplemented financial information.
(h) The Issuer Issuers and the Guarantors, on the one hand, and the Market-Market Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 5 of this Agreement.
(fi) The Issuer Issuers and the Guarantors will comply with the provisions of this Section 4 6 at their own expense and will reimburse the Market Maker for its own expenseexpenses associated with this Section 6 (including reasonable fees of counsel for the Market Maker).
(gj) The agreements contained in this Section 4 6 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or and Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(k) For purposes of this Section 46, (i) any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Market Making Registration Statement or the prospectus Prospectus contained therein shall be deemed to refer to and include the filing under the Exchange 1934 Act of any document deemed to be incorporated therein by referencereference and (ii) any reference to the terms “Securities” or “Exchange Securities” shall be deemed to refer to and include any securities issued in exchange for or with respect to such Securities or Exchange Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Progress Rail Services, Inc.)
MARKET MAKING. (a) For the sole benefit of Xxxxxxx, Xxxxx & Co. (in such capacity, the “Market-Maker”) or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (x) any of the Registrable Securities or Exchange Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Market- Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities or Exchange Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company shall file under the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a the “Market-Making Registration Statement”). The Issuer Company agrees to use its commercially reasonable best efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer Company agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, Securities and shall use its commercially reasonable best efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer Company further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer Company for the applicable Market-Making Registration Statement, and the Issuer Company agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer Company may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer Company reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer Company determines in good faith that such action is in the best interests of the Issuer Company or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer Company notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer Company shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC for any post-effective amendment to a Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or a supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use promptly its commercially reasonable best efforts to obtain its withdrawal.
(vi) The Issuer Company shall furnish to the Market-Maker Maker, in each case without charge to the Market-Maker, at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, and electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer Company shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or SecuritiesExisting Notes, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer Company shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer Company that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration StatementRegistration, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer Company will use its commercially reasonable best efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities or Exchange Securities covered by such Market-Making Registration Statement; provided that neither the Issuer Company nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making Market-Making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer At the time of effectiveness of a Market-Making Registration Statement (unless it is the same as the time of effectiveness of the Exchange Offer Registration Statement) and concurrently with each time such Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of an appropriate officer to the effect that:
(i) such Market-Making Registration Statement has been declared effective;
(ii) in the case of an amendment or supplement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; if required, such amendment or supplement to the prospectus was filed with the SEC pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and
(iii) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, such Market-Making Registration Statement and the Guarantorsprospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(f) The Company, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(fg) The Issuer Company will comply with the provisions of this Section 4 at its own expense.
(gh) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, Securities and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(i) For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable a Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Registration Rights Agreement (Capmark Finance Inc.)
MARKET MAKING. (a) For so long as any of the sole benefit of XxxxxxxConsenting Notes, Xxxxx & Co. Exchange Notes or Private Exchange Notes are outstanding and JPMorgan (in such capacity, the “"Market-Maker”") or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (xCommission) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsCompany, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Note Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities Consenting Notes, Exchange Notes or Private Exchange Securities Notes as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company and the Note Guarantors shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement, is filed with the Commission, file under a registration statement (the Securities Act one or more registration statements, in a form approved by the Market-Maker (each such filing, a “Market-Making Registration,” and each such registration statement, a “"Market-Making Registration Statement”). The Issuer agrees to ") (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the rules and regulations of the Commission) and use its commercially reasonable efforts to cause a such Market-Making Registration Statement with respect to be declared effective by the Commission on or prior to the consummation of the Exchange Offer or the effective date of the Shelf Registration Statement, as applicable; (B) periodically amend such Market-Making Registration Statement so that the information contained therein complies with the requirements of Section 10(a) under the Securities Act; (and, upon reasonable request C) if reasonably requested in writing by the Market-Maker, within 45 days following the Issuer will use commercially reasonable efforts end of each of the Company's fiscal quarters (other than the fourth quarter), file a supplement to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, prospectus contained in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective that sets forth the financial results of the Company for so long as such quarter; (D) amend the Market-Maker may be Making Registration Statement or amend or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (E) amend the Market-Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; PROVIDED, as HOWEVER, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any amendment or supplement to the registration form used by related prospectus (other than a supplement filed pursuant to clause (C) of this paragraph unless the Issuer for the applicable Market-Making Registration StatementMaker reasonably requests), and the Issuer agrees to Company will furnish to the Market-Maker copies of any all such supplement or amendment prior documents proposed to be filed, which documents will be subject to the review of the Market-Maker and its being used or promptly following its filing with counsel and (2) the SEC.
(ii) Notwithstanding Company and the foregoing, Note Guarantors will not file the Issuer may suspend the offering and sale under a Market-Making Registration Statement for Statement, any amendment thereto or any supplement to the related prospectus (other than a period or periods supplement filed pursuant to clause (C) of this paragraph unless the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required Maker reasonably requests) to be effective and usable hereunder (measured from which the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) Maker and its counsel shall reasonably object unless the Board of Directors of Company and the Issuer determines in good faith Note Guarantors are advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make be filed under applicable securities laws and the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies Company will provide the Market-Maker within five days before and its counsel with copies of the effectiveness of such suspensionMarket-Making Registration Statement and each amendment and supplement filed.
(iiiii) The Issuer Company shall notify the Market-Maker and, if requested by the Market-Maker, confirm such advice in writing, (A) when any Market-Making Registration Statement, any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities Consenting Notes or Exchange Securities Notes for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading; and (F) of any advice from a nationally recognized statistical rating organization that such organization has placed the Company under surveillance or review with negative implications or has determined to downgrade the rating of the Consenting Notes, Exchange Notes or Private Exchange Notes or any other debt obligation of the Company whether or not such downgrade shall have been publicly announced.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D6(a)(ii)(B) and through (E) occurs during the period for which the Issuer is Company and the Note Guarantors are required to maintain an effective Market-Making Registration Statement, the Issuer Company and the Note Guarantors shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.the
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Uniplast Industries Co)
MARKET MAKING. (a) For The Company will, for the sole benefit of Xxxxxxx, Xxxxx & Co. Chase Securities Inc. (in such capacity, the “"Market-Maker”) or any of its affiliates (as defined "), unless the Market Maker, in the rules and regulations opinion of counsel to the Company, is not an affiliate of the SEC)Company, for so long as (x) any of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities, Exchange Securities or Private Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(iA) The Issuer On the date that the Exchange Offer Registration Statement is filed with the Commission, the Company shall file under a Registration Statement (which may be the Securities Act one Exchange Offer Registration Statement or more registration statements, in a form approved the Shelf Registration Statement if permitted by the Market-Maker (each such filing, a “Market-Making Registration,” rules and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to regulations of the Commission) and shall use its commercially reasonable efforts to cause a Market-Making such Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective on or by the Commission prior to (i) or on the date consummation of the Exchange Offer is completed Offer; (B) periodically amend such Registration Statement so that the information contained therein complies with the
(a) under the Securities Act; (C) file on a timely basis all reports and proxy and information statements required to be filed by the Company with the Commission pursuant to Section 2(aSections 13(a), 13(c), 14 or 15(d) above of the Exchange Act or, if the Company is not eligible to use Form S-3 (or (iiany successor form) under the date Securities Act, file a supplement to the Initial Shelf prospectus contained in the Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in within 45 days following the end of each case, to keep of the Company's fiscal quarters which sets forth the financial results of the Company for such Market-Making quarter; (D) amend the Registration Statement continuously effective for so long as or supplement the Market-Maker may be required related prospectus when necessary to deliver a prospectus in connection with transactions reflect any material changes in the Registrable Securities information provided therein; provided, however, that (1) prior to filing with the Commission any post-effective amendment to the Registration Statement or any supplement to the related prospectus (other than reports to be filed under the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is Act which will be deemed to be conducted under Section 2(a) aboveincorporated by reference in the Registration Statement and related prospectus), the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to Company will furnish to the Market-Maker copies of any all such documents proposed to be filed, which documents will be subject to the review of the Market-Maker and its counsel, (2) the Company will not file such documents to which the Market-Maker and its counsel shall reasonably object after having been given reasonable notice of the proposed filing thereof unless the Company is required by law to make such filing and (3) the Company will provide the Market-Maker and its counsel with copies of each amendment or supplement or amendment prior to its being used or promptly following its filing with the SECfiled.
(ii) Notwithstanding If at any time the foregoingCompany becomes no longer eligible to use Form S-3 under the Securities Act with respect to sales of the Securities, Exchange Securities or Private Exchange Securities, file a post-effective amendment to the Issuer may suspend the offering and sale under a Market-Making Registration Statement for to convert it to a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue Form S-1 registration statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspensionas soon as practicable.
(iii) The Issuer shall notify Notify the Market-Maker Maker, and (if requested by the Market-Maker) confirm such advice in writing, (A) when any post-effective amendment to a Market-Making the Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a Market-Making the Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a Market-Making the Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that which makes any statement made in a Market-Making the Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that which requires the making of any changes in a Market-Making the Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading; and (F) of any advice from a nationally recognized statistical rating organization that such organization has placed the Company under surveillance or review with negative implications or has determined to downgrade the rating of the Securities, Exchange Securities or Private Exchange Securities or any other debt obligation of the Company whether or not such downgrade shall have been publicly announced.
(iv) If any event contemplated by Section 4(a)(iii)(B)Furnish to the Market-Maker, without charge, (Di) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, the Issuer shall use its commercially reasonable efforts to promptly prepare and file with the SEC a at least one conformed copy of any post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Statement; and (vii) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viiv) The Issuer shall consent Consent to the use of the prospectus contained in a Market-Making the Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activitiesthe offering and sale of the Securities.
(viiivi) Notwithstanding For so long as the foregoing provisions Securities, Exchange Securities or Private Exchange Securities shall be outstanding, furnish to the Market-Maker (A) as soon as practicable after the end of this Section 4each of the Company's fiscal years, the Issuer may number of copies reasonably requested by the Market-Maker of the Company's annual report to stockholders for valid business reasonssuch year, including (B) as soon as available, the number of copies reasonably requested by the Market-Maker of each report (including, without limitation, a potential acquisitionReports on Forms 10-K, divestiture 10-Q and 8-K) or definitive proxy statements of assets the Company filed under the Exchange Act or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective mailed to stockholders and (C) all public reports and all reports and financial statements furnished by the Company to the Nasdaq National Market System or any U.S. national securities exchange or quotation service upon which the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities may be listed pursuant to requirements of or agreements with such exchange or quotation service or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder.
(or Securities, if applicablevii) and may issue In the event of the issuance of any notice stop order suspending use the effectiveness of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriate. The Market-Maker agrees that upon receipt of any notice from order suspending the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies qualification of the supplemented Securities, Exchange Securities or amended prospectus relating thereto until advised Private Exchange Securities for sale in writing by the Issuer that the any jurisdiction, to use of a Market-Making Registration Statement may be resumedpromptly its best efforts to obtain its withdrawal.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer Company represents that each Market-Making Registration Statement, any post-effective amendments theretoto the Registration Statement, any amendments or supplements to the related prospectus and any documents filed by them it under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all material respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making the Registration Statement or the related prospectus in reliance upon and in conformity with written information Holders' Information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein.
(c) Each time that the Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, which information the parties hereto agree will be limited Company shall (at the reasonable request of the Market-Maker), concurrently with such amendment or supplement, furnish the Market- Maker and its counsel with a certificate of its Chairman of the Board or its President and its chief financial officer to the effect that:
(i) The Registration Statement has been declared effective and such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable, such amendment to the prospectus (or such supplement to the prospectus, as the case may be) was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; and, to the knowledge of such officers, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and
(ii) Such officers have carefully examined the Registration Statement and the prospectus and such amendment or supplement thereto and, in their opinion, as of the date of such amendment or supplement, the Registration Statement and the prospectus, as amended or supplemented, as the case may be, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements concerning therein not misleading.
(d) Each time that the market making activities Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (at the reasonable request of the Market-Maker), concurrently with such amendment or supplement, furnish the Market-Maker and its counsel with the written opinion of counsel for the Company satisfactory to the Market-Maker to be set forth the effect that:
(i) The Registration Statement has been declared effective and such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable, such amendment to the prospectus (or such supplement to the prospectus, as the case may be) was filed with the Commission pursuant to the subparagraph Rule 424(b) under the Securities Act specified in such opinion on the cover page date specified therein; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and
(ii) Counsel for the Company has reviewed such amendment or supplement and participated with officers of the Company and independent public accountants for the Company in the “Plan preparation of Distribution” section such amendment or supplement and has no reason to believe that the Registration Statement (or any post-effective amendment thereto), at the time of its effective date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the prospectuscircumstances under which they were made, not misleading.
(e) The Issuer Each time that the Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented to include audited annual financial information, the Company shall (at the reasonable request of the Market-Maker), concurrently with such amendment or supplement, furnish the Market-Maker and its counsel with a letter of Arthxx Xxxexxxx XXX (or other independent public accountants for the GuarantorsCompany of nationally recognized standing), on the one hand, and in form satisfactory to the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute addressed to the otherMarket-Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in accordance compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) a letter substantially in the form of the letter delivered to the Underwriters pursuant to Section 8 5(f) of this Agreementthe Purchase Agreement with such changes as may be necessary to reflect the amended or supplemental financial information.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 6 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party. .
(g) For purposes of this Section 46, any reference to the terms “"amend,” “", "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Exchange and Registration Rights Agreement (Selfix Inc /De/)
MARKET MAKING. (a) For so long as any of the sole benefit of XxxxxxxSecurities, Xxxxx & Co. New Securities or, after the Merger Closing Date, the Existing Notes are outstanding and X.X. Xxxxxx Securities Inc. (in such capacity, the “Market-Market Maker”) or any of its affiliates (as defined in the rules and regulations Affiliates is an Affiliate of the SEC)Company, so long as (x) any of the Registrable Securities are outstanding and (y) it would be necessary under applicable laws, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Guarantors or any of its affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities their Affiliates and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities, New Securities or Exchange Securities Existing Notes, as applicable, as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Market Maker:
(i) The Issuer Company and the Guarantors shall (A) on the date that the Exchange Offer Registration Statement or, if required hereby, the Shelf Registration Statement is filed with the Commission, file under the Securities Act one or more registration statements, in a form approved statements (the “Market Making Registration Statements”) (which may be the Exchange Offer Registration Statement or the Shelf Registration Statement if permitted by the Market-Maker (each such filing, a “Market-Making Registration,” rules and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to regulations of the Commission) and use its their commercially reasonable best efforts to cause a Market-such Market Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) Statements to be declared effective by the Commission on or prior to the consummation of the Registered Exchange Offer or the effective date of the Shelf Registration Statement, as applicable; (iB) periodically amend such Market Making Registration Statements so that the information contained therein complies with the requirements of Section 10(a) under the Securities Act; (C) amend the Market Making Registration Statements or amend or supplement the related Prospectuses when necessary to reflect any material changes in the information provided therein; and (D) amend the Market Making Registration Statements when required to do so in order to comply with Section 10(a)(3) of the Securities Act; provided, however, that (1) prior to filing the Market Making Registration Statements, any amendment thereto or any supplement to the related Prospectuses, the Company shall furnish to the Market Maker copies of all such documents proposed to be filed, which documents will be subject to the review of the Market Maker and its counsel and (2) the date Company and the Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(a) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep the Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with the sale of such Registrable Securities or Exchange Securities, as the case may be. The Issuer further agrees to supplement or make amendments to each Market-Guarantors will not file any Market Making Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to furnish to the Market-Maker copies of any such supplement or amendment prior to its being used or promptly following its filing with the SEC.
(ii) Notwithstanding the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period or periods the Board of Directors of the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Issuer notifies the Market-Maker within five days before the effectiveness of such suspension.
(iii) The Issuer shall notify the Market-Maker (A) when any post-effective amendment to a Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect Prospectus to any post-effective amendment, when which the same has become effective; (B) of any request Market Maker and its counsel shall reasonably object unless the Company is advised by the SEC for any post-effective amendment to a Market-counsel that such Market Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC of any stop order suspending the effectiveness of a Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement made in a Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or that requires the making of any changes in a Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein not misleading.
(iv) If any event contemplated by Section 4(a)(iii)(B), (D) and (E) occurs during the period for which the Issuer is required to maintain an effective Market-Making Registration Statement, be filed under applicable securities laws and the Issuer shall use Company will provide the Market Maker and its commercially reasonable efforts to promptly prepare and file counsel with the SEC a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement copies of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(v) In the event of the issuance of any stop order suspending the effectiveness of a Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer shall use its commercially reasonable efforts to obtain its withdrawal.
(vi) The Issuer shall furnish to the Market-Maker at least one conformed copy of each Market-such Market Making Registration Statement and any post-effective each amendment thereto and, if not available on XXXXX, electronic copies of the related prospectus and any amendment or supplement thereto.
(vii) The Issuer shall consent to the use of the prospectus contained in a Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viii) Notwithstanding the foregoing provisions of this Section 4, the Issuer may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and the Issuer shall not be obligated to amend or supplement such Market-Making Registration Statement or the prospectus included therein until it reasonably deems appropriatefiled. The Market-Maker agrees that upon receipt of any notice from the Issuer pursuant to this Section 4(a)(viii), it will discontinue use of each Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto until advised in writing by the Issuer that the use of a Market-Making Registration Statement may be resumed.
(b) In connection with a Market-Making Registration Statement, the Issuer shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer and its subsidiaries and (ii) use its reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or the Market-Maker.
(c) Prior to the effective date of a Market-Making Registration Statement, the Issuer will use its commercially reasonable efforts to register or qualify such Registrable Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or blue sky laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(d) The Issuer represents that each Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SEC, as the case may be, conform in all respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading; provided that no representation or warranty is made as to information contained in or omitted from a Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market making activities of the Market-Maker to be set forth on the cover page and in the “Plan of Distribution” section of the prospectus.
(e) The Issuer and the Guarantors, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the otherCompany, in accordance with Section 8 of this Agreement.
(f) The Issuer will comply with the provisions of this Section 4 at its own expense.
(g) The agreements contained in this Section 4 and the representationssole discretion, warranties and agreements contained in this Agreement shall survive all offers and sales may determine to include Prospectuses relating to each of the Securities, Registrable the New Securities or Exchange Securities, one or more series of the Existing Notes in the same or different Market Making Registration Statements so long as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside each such registration statement complies with this Section 4 of this Agreement or any investigation made by or on behalf of any indemnified party6. For purposes of this Section 4, any reference to the terms “amend,” “amendment” or “supplement” with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.The term
Appears in 1 contract
Samples: Registration Rights Agreement (Amc Entertainment Inc)
MARKET MAKING. (a) For so long as any of the sole benefit of Xxxxxxx, Xxxxx & Co. Securities are outstanding and JPMorgan (in such capacity, the “Market"MARKET-Maker”MAKER") or any of its affiliates (as defined in the rules and regulations of the SEC), so long as (xCommission) owns any equity securities of the Registrable Securities are outstanding and (y) it would be necessary under applicable lawsIssuer, rules and regulations, in the reasonable opinion of the Market-Maker, for the Market-Maker Guarantors or any of its their affiliates to deliver a prospectus in connection with market-making activities with respect to the Registrable Securities and the Market-Maker or such affiliate proposes to make a market in the Registrable Securities or Exchange Securities as part of its business in the ordinary course, the following provisions shall apply for the sole benefit of the Market-Maker:
(i) The Issuer Company shall (A) on the date that the Exchange Offer Registration Statement is filed with the Commission, file under a registration statement (the Securities Act one "MARKET-MAKING REGISTRATION STATEMENT") (which may be the Exchange Offer Registration Statement or more registration statements, in a form approved the Shelf Registration Statement if permitted by the Market-Maker (each such filing, a “Market-Making Registration,” rules and each such registration statement, a “Market-Making Registration Statement”). The Issuer agrees to regulations of the Commission) and use its their commercially reasonable efforts to cause a Market-Making Registration Statement with respect to the Exchange Securities (and, upon reasonable request by the Market-Maker, the Issuer will use commercially reasonable efforts to have such Market-Making Registration Statement also cover the Securities) to be declared effective by the Commission on or prior to (i) the date consummation of the Exchange Offer is completed pursuant to Section 2(aOffer; (B) above or (ii) the date the Initial Shelf Registration Statement becomes or is declared effective pursuant to Section 3 above, and, in each case, to keep periodically amend such Market-Making Registration Statement continuously effective for so long as the Market-Maker may be required to deliver a prospectus in connection with transactions in the Registrable Securities or the Exchange Securities, as the case may be. In the event that the Market-Maker holds Registrable information contained therein complies with the requirements of Section 10(a) under the Securities or Exchange Securities at the time the Exchange Offer is to be conducted under Section 2(aAct; (C) above, the Issuer agrees that the applicable Market-Making Registration shall provide for the resale by the Market-Maker of such Registrable Securities or Exchange Securities, as the case may be, and shall use its commercially reasonable efforts to keep amend the Market-Making Registration Statement continuously effective for so long as or amend or supplement the related prospectus when necessary to reflect any material changes in the information provided therein; and (D) amend the Market-Maker may be Making Registration Statement when required to deliver a prospectus do so in connection order to comply with Section 10(a)(3) of the sale of such Registrable Securities or Exchange SecuritiesAct; provided, as however, that (1) prior to filing the case may be. The Issuer further agrees to supplement or make amendments to each Market-Making Registration Statement, as and when required by the rules, regulations any amendment thereto or instructions applicable any amendment or supplement to the registration form used by related prospectus, the Issuer for the applicable Market-Making Registration Statement, and the Issuer agrees to Company will furnish to the Market-Maker copies of any all such supplement or amendment prior documents proposed to be filed, which documents will be subject to the review of the Market-Maker and its being used or promptly following its filing with counsel, (2) the SEC.
(ii) Notwithstanding Company will not file the foregoing, the Issuer may suspend the offering and sale under a Market-Making Registration Statement for a period Statement, any amendment thereto or periods any supplement to the Board of Directors of related prospectus to which the Issuer reasonably determines to be advisable for valid business reasons, but in any event not in excess of 45 consecutive days or more than three (3) times during any calendar year during which such Market-Making Registration Statement Maker and its counsel shall reasonably object unless the Company is required to be effective and usable hereunder (measured from the time such Market-Making Registration Statement becomes effective to successive anniversaries thereof) if (A) (i) the Board of Directors of the Issuer determines in good faith advised by counsel that such action is in the best interests of the Issuer or (ii) such Market-Making Registration Statement, prospectus or amendment or supplement thereto contains an untrue statement of a material fact or omits is required to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, be filed and (B3) the Issuer notifies Company will provide the Market-Maker within five days before and its counsel with copies of the effectiveness of such suspensionMarket-Making Registration Statement and each amendment and supplement filed.
(iiiii) The Issuer Company shall notify the Market-Maker and, if requested by the Market-Maker, confirm such advice in writing, (A) when any post-effective amendment to a the Market-Making Registration Statement or any amendment or supplement to the related prospectus has been filed, and, with respect to any post-effective amendment, when the same has become effective; (B) of any request by the SEC Commission for any post-effective amendment to a the Market-Making Registration Statement, any supplement or amendment to the related prospectus or for additional information; (C) the issuance by the SEC Commission of any stop order suspending the effectiveness of a the Market-Making Registration Statement or the initiation of any proceedings for that purpose; (D) of the receipt by the Issuer Company of any notification with respect to the suspension of the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose; and (E) of the happening of any event that makes any statement of a material fact made in a the Market-Making Registration Statement, the related prospectus or any amendment or supplement thereto untrue or and that requires the making of any changes in a the Market-Making Registration Statement, such prospectus or any amendment or supplement thereto, in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(iviii) If any event contemplated by Section 4(a)(iii)(B), (D4(a)(ii)(B) and through (E) occurs during the period for which the Issuer Company is required to maintain an effective Market-Making Registration Statement, the Issuer Company shall use its commercially reasonable efforts to promptly prepare and file with the SEC Commission a post-effective amendment to the applicable Market-Making Registration Statement or an amendment or supplement to the related prospectus or file any other required document so that the prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(viv) In the event of the issuance of any stop order suspending the effectiveness of a the Market-Making Registration Statement or of any order suspending the qualification of the Registrable Securities or Exchange Securities for sale in any jurisdiction, the Issuer Company shall use its promptly their commercially reasonable efforts to obtain its withdrawal.
(viv) The Issuer Company shall furnish to the Market-Maker Maker, without charge, (i) at least one conformed copy of each the Market-Making Registration Statement and any post-effective amendment thereto and, if not available on XXXXX, electronic thereto; and (ii) as many copies of the related prospectus and any amendment or supplement theretothereto as the Market-Maker may reasonably request.
(viivi) The Issuer Company shall consent to the use of the prospectus contained in a the Market-Making Registration Statement or any amendment or supplement thereto by the Market-Maker in connection with its market-making activities.
(viiivii) Notwithstanding the foregoing provisions of this Section 4, the Issuer Company may for valid business reasons, including without limitation, a potential acquisition, divestiture of assets or other material corporate transaction, issue a notice that a the Market-Making Registration Statement is no longer effective or the prospectus included therein is no longer usable for offers and sales of Registrable Securities or Exchange Securities (or Securities, if applicable) and may issue any notice suspending use of such the Market-Making Registration Statement required under applicable securities laws to be issued for so long as valid business reasons exist and issued; PROVIDED, HOWEVER, that the Issuer shall not be obligated to amend or supplement such use of the Market-Making Registration Statement or shall not be suspended for more than 60 days in the prospectus included therein until aggregate in any consecutive 12 month period; PROVIDED, FURTHER, HOWEVER, that the use of the Market-Making Registration Statement may be suspended for an additional 15 days in the aggregate in any consecutive 12 month period upon the consent of the Market-Maker (which consent the Market-Maker shall not withhold if it reasonably deems appropriatedetermines the reasons for such suspension to be reasonable). The Market-Maker agrees that upon receipt of any notice from the Issuer Company pursuant to Section 4(a)(iii) or this Section 4(a)(viii4(a)(vii), it will discontinue use of each the Market-Making Registration Statement until receipt of copies of the supplemented or amended prospectus relating thereto or until advised in writing by the Issuer Company that the use of a the Market-Making Registration Statement may be resumed.
(b) In connection with a the Market-Making Registration Statement, the Issuer Company shall (i) make reasonably available for inspection by a representative of, and counsel acting for, the Market-Maker all relevant financial and other records, pertinent corporate documents and properties of the Issuer Company and its subsidiaries and (ii) use its commercially reasonable best efforts to have its officers, directors, employees, accountants and counsel supply all relevant information reasonably requested by such representative or counsel or of the Market-Maker, provided that such representatives and counsel shall keep such information provided confidential.
(c) Prior to the effective date of a the Market-Making Registration Statement, the Issuer will Company shall use its commercially reasonable best efforts to register or qualify such Registrable the Securities or Exchange Securities (or Securities, if applicable), as applicable, for offer and sale under the securities or "blue sky sky" laws of such jurisdictions as the Market-Maker reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such the Market-Making Registration Statement; provided that neither the Issuer nor any Guarantor will and the Guarantors shall not be required to qualify generally to do business in any jurisdiction where it is they are not then so qualified or to take any action which would subject it them to general service of process or to taxation in any such jurisdiction where it is they are not then so subject.
(d) The Issuer Company represents and agrees that each the Market-Making Registration Statement, any post-effective amendments thereto, any amendments or supplements to the related prospectus and any documents filed by them under the Exchange Act will, when they become effective or are filed with the SECCommission, as the case may be, conform in all material respects to the requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC Commission thereunder and will not, as of the effective date of such Market-Making Registration Statement or post-effective amendments and as of the filing date of amendments or supplements to such prospectus or filings under the Exchange Act, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from a the Market-Making Registration Statement or the related prospectus in reliance upon and in conformity with written information furnished to the Issuer Company by the Market-Maker specifically for inclusion therein, which information the parties hereto agree will be limited to the statements concerning the market market-making activities of the Market-Maker to be set forth on the cover page page, in the "Plan of Distribution" section and in the “Plan of Distribution” section Canadian wrapper, if any, of the prospectusprospectus (the "Market-Maker's Information").
(e) The At the time of effectiveness of the Market-Making Registration Statement and concurrently each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Issuer shall (if requested by the Market-Maker) furnish the Market-Maker and its counsel with a certificate of its or President or any Vice President and its Chief Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment to the Market-Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such certificate, if applicable; in the case of an amendment or supplement to the prospectus, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such certificate on the date specified therein; (iii) to the knowledge of such officers, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; (iv) such officers have carefully examined the Market-Making Registration Statement and the Guarantorsprospectus (and, in the case of an amendment or supplement, such amendment or supplement) and as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) At the time of effectiveness of the Market-Making Registration Statement and concurrently each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented, the Company shall (if requested in writing by the Market-Maker) furnish the Market-Maker and its counsel with the written opinion of counsel for the Company reasonably satisfactory to the Market-Maker to the effect that (subject to customary assumptions, qualifications and exceptions):
(i) the Market-Making Registration Statement has been declared effective; (ii) in the case of an amendment to the Market-Making Registration Statement, such amendment has become effective under the Securities Act as of the date and time specified in such opinion, if applicable; in the case of an amendment or supplement to the prospectus, such amendment or supplement to the prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in such opinion on the date specified therein; (iii) to the knowledge of such counsel, no stop order suspending the effectiveness of the Market-Making Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and (iv) such counsel has reviewed the Market-Making Registration Statement and the prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and participated with officers of the Company and independent public accountants for the Company in the preparation of such Market-Making Registration Statement and prospectus (and, in the case of an amendment or supplement, such amendment or supplement) and has no reason to believe that (except for the financial statements and other financial data contained therein as to which no belief is required) as of the date of such Market-Making Registration Statement, amendment or supplement, as applicable, the Market-Making Registration Statement and the prospectus, as amended or supplemented, if applicable, contained any untrue statement of a material fact or omitted 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.
(g) At the time of effectiveness of the Market-Making Registration Statement and concurrently each time the Market-Making Registration Statement or the related prospectus shall be amended or such prospectus shall be supplemented to include audited annual financial information, the Company shall (if requested by the Market-Maker) furnish the Market-Maker and its counsel with a letter of Deloitte & Touche LLP (or other independent public accountants for the Company or the Guarantors of nationally recognized standing) in form reasonably satisfactory to the Market-Maker, addressed to the Market-Maker and dated the date of delivery of such letter, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and, (ii) in all other respects, substantially in the form of the letter delivered to the Initial Purchasers pursuant to Sections 6(a) and 6(f) of the Purchase Agreement, with, in the case of an amendment or supplement to include audited financial information, such changes as may be reasonably necessary to reflect the amended or supplemented financial information.
(h) The Company, on the one hand, and the Market-Maker, on the other hand, hereby agree to indemnify each other, and, if applicable, contribute to the other, in accordance with Section 8 6 of this Agreement.
(fi) The Issuer Company will comply with the provisions of this Section 4 at its own expense. The Company will reimburse the Market-Maker for (i) up to $25,000 per year of the Market-Maker's expenses associated with this Section 4 (other than Sections 4(f) and 4(g)) (including reasonable fees of counsel) and (ii) any of the Market-Maker's expenses incurred pursuant to Sections 4(f) and 4(g).
(gj) The agreements contained in this Section 4 and the representations, warranties and agreements contained in this Agreement shall survive all offers and sales of the Securities, Registrable Securities or Exchange Securities, as the case may be, and shall remain in full force and effect, regardless of any termination or cancellation of agreements outside this Section 4 cancelation of this Agreement or any investigation made by or on behalf of any indemnified party. .
(k) For purposes of this Section 4, any reference to the terms “"amend,” “", "amendment” " or “"supplement” " with respect to the applicable Market-Making Registration Statement or the prospectus contained therein shall be deemed to refer to and include the filing under the Exchange Act of any document deemed to be incorporated therein by reference.
Appears in 1 contract
Samples: Registration Rights Agreement (Wilmar Holdings Inc)
