Parent’s Obligations. If and whenever Parent is required to effect the Registration of any Registrable Securities under the applicable Securities Laws pursuant to this Agreement, Parent will, as expeditiously as possible: (a) prepare and file with the Securities Regulators the requisite Registration Statement to effect such Registration and thereafter use its best efforts to cause such Registration Statement to become effective; (b) prepare and file with the Securities Regulators such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective (subject to the provisions of Section 7.1(b)) and to comply with the provisions of the applicable Securities Laws with respect to the disposition of all Registrable Securities offered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Selling Shareholders set forth in such Registration Statement; (c) furnish to each Selling Shareholder such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference, appropriately legended in the case of those exhibits filed on a confidential basis), and, so long as Parent is required to keep such Registration Statement effective pursuant to paragraph (b) above, such number of copies of the prospectus contained in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed pursuant to the applicable Securities Laws, in conformity with the requirements of the applicable Securities Laws, and such other documents, as such Selling Shareholder may reasonably request; (d) use its best efforts (x) to register or qualify all Registrable Securities offered by such Registration Statement under such other state or "blue sky" Securities Laws of such jurisdiction where an exemption is not available and as any Selling Shareholder shall reasonably request, (y) to keep such Registration or qualification in effect for so long as such Registration Statement remains in effect and (z) to take any other action that may be necessary or advisable to enable such Selling Shareholders to consummate the disposition in such jurisdictions of the Registrable Securities to be sold by such Selling Shareholders, except that Parent shall not for any such purpose be required to: (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not, but for the requirements of this paragraph, be obligated to be so qualified; (ii) become subject to taxation in any jurisdiction where it would not then be so subject; or (iii) take any action that would subject it to general service of process in any such jurisdiction (except to the extent required by the applicable laws of a particular jurisdiction in connection with the particular offering); (e) use its reasonable best efforts to cause all Registrable Securities offered by such Registration Statement to be registered with or approved by such other federal, provincial or state governmental agencies or authorities as may be necessary in the opinion of counsel to Parent and counsel to the Selling Shareholders to enable the Selling Shareholders to consummate the disposition of such Registrable Securities; (f) furnish at the effective date of such Registration Statement and the date of closing of the sale of the Registrable Securities (whether or not such sale is underwritten), to each Selling Shareholder, and each Selling Shareholder's underwriters, if any, a signed counterpart of: (i) an opinion of counsel for Parent, dated the effective date of such Registration Statement (or such date of closing, as applicable), and (ii) a "comfort" letter signed by the independent public accountants who have certified Parent's financial statements included or incorporated by reference in such Registration Statement, covering substantially the same matters with respect to such Registration Statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities; (g) notify each Selling Shareholder at any time when a prospectus relating to the Registration is required to be delivered under the Securities Laws, upon discovery that, or upon the happening of any event known to Parent as a result of which, the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and promptly prepare and furnish to each Selling Shareholder a reasonable number of copies of a supplement to or any amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made; (h) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities Laws and, if required, make available to its Shareholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such Registration Statement, which earnings statement shall satisfy the provisions of Securities Laws; (i) permit any Selling Shareholder to participate in the preparation of such Registration Statement and to include therein material, furnished to Parent in writing, which in the reasonable judgement of the Selling Shareholder should be included and which is reasonably acceptable to Parent; (j) if any proposed Registration Statement refers to a Selling Shareholder by name or otherwise as the holder of any securities of Parent then: (i) upon reasonable request Parent shall be required to insert therein language, in form and substance reasonably satisfactory to such Selling Shareholder, Parent and the lead managing underwriter(s), to the effect that the ownership by such Selling Shareholder of such securities is not to be construed as a recommendation by such Selling Shareholder as to the investment quality of Parent's securities offered thereby and that such ownership does not imply that such Selling Shareholder will assist in meeting any future financial requirements of Parent; or (ii) in the event that such reference to such Selling Shareholder by name or otherwise is not required by the applicable Securities Laws, any similar federal, provincial or state statute, or any rule or regulation of any other regulatory body having jurisdiction over the offering, then in force, Parent shall be required at the request of such Selling Shareholder to delete the reference to such Selling Shareholder; (k) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities offered by such Registration Statement; and (l) use its best efforts to list all Registrable Securities covered by such Registration Statement on any securities exchange or trading market on which Parent's Registrable Securities are then listed. The Shareholders shall not have any right to obtain or seek an injunction restraining or otherwise delaying any registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 10.4.
Appears in 1 contract
Parent’s Obligations. If and whenever Parent is required to effect the Registration of any Registrable Securities under the applicable Securities Laws pursuant to this Agreement, Parent will, as expeditiously as possibleThe following are Parent's obligations:
(a) prepare As soon as reasonably practicable after the Execution Date, but in no event later than May 31, 1999, Parent shall deliver to Holdings (i) financial statements for the Business as of and file for the year ended March 31, 1998 (the "Audited 1998 Financial Statements"), and (ii) financial statements for the Business as of and for the year ended March 31, 1999 (the "Audited 1999 Financial Statements"), each audited by KPMG. The Audited 1998 Financial Statements and the Audited 1999 Financial Statements (collectively, the "Audited Annual Statements") shall have been prepared in accordance with GAAP applied in a manner consistent with the Securities Regulators Financial Statements, as modified or supplemented pursuant to Schedule 1.11. Each of the requisite Registration Statement Audited Annual Statements shall be addressed to effect such Registration Parent. In rendering the Audited Annual Statements, Parent and thereafter use its best efforts auditors shall consult from time to cause such Registration Statement time with Holdings and PWC and permit Holdings and PWC at the earliest practicable date (i) access to become effective;and copies of the work papers and calculations related to the Audited Annual Statements and (ii) to provide comments to KPMG as to whether, in their opinion, the audit of the Audited Annual Statements complies with the requirements of this Agreement.
(b) Subject to applicable law and privilege, Parent shall give, and shall cause the Subsidiaries to give, to the officers, employees, attorneys, consultants, accountants and lenders of Holdings' and Schroder Ventures reasonable access during noxxxx xxxiness hours to all of the properties, books, contracts, documents, records and personnel of Parent and the Subsidiaries relating to the Business and shall furnish to Holdings such information as Holdings may at any time and from time to time reasonably request.
(c) Parent shall:
(i) cause to be formed or shall acquire (by way of purchase of a "shelf" corporation or other entity), the New Subsidiaries. Parent shall cause the Company to subscribe for equity interests in the New Subsidiaries in such amounts as required under applicable law. Prior to the Closing Date, no New Foreign Subsidiary shall incur any liabilities of any kind or nature, except such liabilities as are incident to the Transactions;
(ii) cause the articles of organization of the Company to be amended and restated such that (x) the Company's authorized capital shall consist of 1,363,875 preferred units and 23,260,000 common units, each with the preferences and rights described in Exhibit C hereto; (y) the outstanding membership interest in the Company held by Danka US is converted into one common unit of the Company; and (z) the Company is authorized to hold the equity interests in the New Subsidiaries and otherwise participate in the Transactions. as contemplated by this Agreement; and
(iii) cause Danka US to prepare and file sign an Entity Classification Election (Form 8832) under Section 7701 of the Code to cause the Company to elect to be classified as an association taxable as a corporation, effective as of the day prior to the Closing Date (the "Company Election), such election to be filed by Holdings in accordance with Section 6.3(e).
(d) Parent shall use reasonable efforts and make every good faith attempt (and Holdings shall cooperate with Parent) to obtain the consents to the assignment of, or alternate arrangements satisfactory to Holdings with respect to, the contracts, leases, or other instruments which constitute Transferred Assets, including without limitation those which are enumerated in Exhibit D attached hereto (the "Material Consents") (it being understood and agreed that Parent shall bear up to an aggregate of $500,000 of any fees or other charges (other than incidental filing fees and costs) imposed to obtain third party consents (including Material Consents) and the assignment of Permits (including Material Permits).
(e) Parent shall use reasonable efforts and make every good faith attempt (and Holdings shall cooperate with Parent) to obtain the consents to the assignment of, or the issuance to a New Subsidiary of a replacement Permit with respect to, all Permits, including without limitation those Permits which are enumerated in Exhibit E attached hereto (the "Material Permits") (it being understood and agreed that Parent shall bear up to an aggregate of $500,000 of any fees or other charges (other than incidental filing fees and costs) imposed to obtain third party consents (including Material Consents) and the assignment of Permits (including Material Permits).
(f) Parent shall cause the Subsidiaries to carry on the Business in the usual and ordinary course of business, consistent with past practices (but in no event shall this Section 3.2(f) be deemed to permit the Subsidiaries to continue to engage in the practices described in the final sentence of Section 2.3(l)).
(g) Parent shall, and shall cause the Subsidiaries to, cooperate with Holdings and any Affiliate of Holdings to (i) engage in such discussions with the Securities Regulators customers of the Business, as Holdings may reasonably request, relating to the Transactions and (ii) as Holdings may reasonably request, facilitate the smooth transition of ownership of the business to Holdings, the Company and the New Subsidiaries.
(h) Parent shall use reasonable efforts and make every good faith attempt (and Holdings shall cooperate with Parent) to obtain the consents (the "Bank Consents") required pursuant to that certain Credit Agreement (the "Credit Agreement") dated as of December 5, 1996 among Parent, Dankalux Sarl & Co. SCA, Danka Holding Company, certain banks signatory thereto (the "Banks") and NationsBank, National Association, as agent for such Banks (in such capacity, the "Bank Agent"), as amended, with respect to the consummation of the Transactions. The Credit Agreement, and all amendments and supplements waivers thereto (as listed in Schedule 3.2(h)) represent all credit agreements for which a consent is required from any bank with respect to consummation of the Transactions by Parent or any of the Subsidiaries.
(i) Except as expressly approved in writing by Holdings, and without limiting the generality of any other provision of this Agreement, neither Parent nor any of the Subsidiaries shall, with respect to the conduct of the Business:
(i) prepay any material obligations of the Business;
(ii) other than in the ordinary course of business consistent with past practice, establish, adopt, enter into or amend any collective bargaining agreement, increase the compensation payable to any employee employed in the conduct of the Business, increase compensation payable to any officer of the Business, enter into any employment, deferred compensation, termination, severance or similar agreement (or any amendment to any such Registration Statement as may be necessary existing agreement) with any director, officer or employee engaged in the Business (other than, for non-U.S. Subsidiaries, any such agreement with any employee whose annual salary is less than $50,000), increase the benefits payable under any existing severance or termination pay policies or agreements or adopt any new employee benefit or pension plan;
(iii) other than in the ordinary course of business consistent with past practice, transfer any employee of the Business to any other business of Parent or any Affiliate, or transfer any employee of any other business of Parent or any Affiliate to the Business;
(iv) sell, transfer, assign, lease or otherwise dispose of any material asset or property of the Business except for (A) sales of Inventory in the usual and ordinary course of business and (B) application of cash in payment of liabilities of the Business in the usual and ordinary course of business;
(v) change any method of accounting or accounting practice;
(vi) fail to maintain Inventories and Fixed Assets of the Business at current levels, except for sales or acquisitions of Inventories and acquisitions of Fixed Assets in the ordinary course of business, and maintain the properties of the Business in good repair, order and condition, reasonable wear and tear excepted;
(vii) fail to maintain and keep such Registration Statement effective in full force and effect all insurance on assets and property or for the benefit of employees of the Business, all liability and casualty insurance, and all bonds on personnel, presently carried;
(viii) subject to the provisions limitations contained herein, fail to preserve intact the organization and reputation of the Business and to keep available the services of the present executives, employees and agents of the Business and to preserve the goodwill of suppliers, customers (including reasonable efforts to maintain in effect existing customer contracts) and others having business relationships with the Business;
(ix) fail to maintain its books, accounts and records in the usual, regular and ordinary manner on a basis consistent with prior years;
(x) enter into, amend or terminate, or agree to enter into, amend or terminate, any Material Contract, other than in the ordinary and regular course of business;
(xi) extend credit in the sale of products, collection of receivables or otherwise, other than in the ordinary and regular course of business;
(xii) take any material action, not previously announced to the trade, including providing promotions, discounts or price increases, other than in the ordinary and regular course of business;
(xiii) voluntarily incur or become subject to, agree to incur or become subject to, any material debt, obligation or liability, contingent or otherwise, except current liabilities and other than in the ordinary and regular course of business;
(xiv) modify or vary the terms on which the Business , on the one hand, and Parent or any of its Affiliates, on the other hand, conducts business with each other;
(xv) make any payments to Parent or any of its Affiliates, other than payments for goods or services received by the Business in the ordinary and regular course of business, or enter into any agreements with Parent or any of its Affiliates other than for the supply of goods and services by or to the Business in the ordinary and regular course of business;
(xvi) fail to pay material obligations or liabilities of the Business when due, except where such obligation is the subject of a bona fide dispute;
(xvii) (x) fail to make capital expenditures reasonably required for the continued operation of the Business in the ordinary course and consistent with past practice (disregarding the practices described in the final sentence of Section 7.1(b2.3(l)) and (provided that if Parent or the Subsidiaries makes any capital expenditures not set forth on Schedule 3.2(i) or in amounts greater than those set forth on such schedule with respect thereto, Holdings shall, at the Closing, reimburse Parent or the applicable Subsidiary for such additional capital expenditures), or (y) fund any capital expenditures of the Business through any leasing arrangements;
(xviii) fail to provide sufficient cash resources to the Business to comply with the provisions of this Section 3.2(i);
(xix) intentionally take any action to seek, encourage, or solicit any inquiry, proposal, expression of interest or offer from any other person or entity with respect to an acquisition, combination or similar transaction involving the applicable Securities Laws Business or substantially all of the assets related thereto, and Parent will promptly inform Holdings of the existence of any such inquiry, proposal, expression of interest or offer and shall not without the written consent of Holdings furnish any information to or participate in any discussions or negotiations with any other person or entity regarding the same; or
(xx) take any action to collect any portion of the Kodak Receivable Amount.
(j) Parent agrees, upon reasonable request, and subject to the terms of the Confidentiality Letter, (a) to promptly provide (and to cause the management of the Business to provide) to Credit Suisse First Boston all financial and other information in Parent's and such management's possession with respect to the disposition Business and with respect to the Transactions, including but not limited to information and projections prepared by Parent or management of all Registrable Securities offered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Selling Shareholders set forth in such Registration Statement;
(c) furnish to each Selling Shareholder such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits and documents incorporated by referenceBusiness, appropriately legended in the case of those exhibits filed on a confidential basis), and, so long as Parent is required to keep such Registration Statement effective pursuant to paragraph (b) above, such number of copies to make senior officers and representatives of the prospectus contained in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed pursuant Business available to the applicable Securities Laws, in conformity with the requirements of the applicable Securities Laws, and such other documents, as such Selling Shareholder may reasonably request;
(d) use its best efforts (x) to register or qualify all Registrable Securities offered by such Registration Statement under such other state or "blue sky" Securities Laws of such jurisdiction where an exemption is not available and as any Selling Shareholder shall reasonably request, (y) to keep such Registration or qualification in effect for so long as such Registration Statement remains in effect and (z) to take any other action that may be necessary or advisable to enable such Selling Shareholders to consummate the disposition in such jurisdictions of the Registrable Securities to be sold by such Selling Shareholders, except that Parent shall not for any such purpose be required to: (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not, but for the requirements of this paragraph, be obligated to be so qualified; (ii) become subject to taxation in any jurisdiction where it would not then be so subject; or (iii) take any action that would subject it to general service of process in any such jurisdiction (except to the extent required by the applicable laws of a particular jurisdiction Credit Suisse First Boston in connection with the particular offering);
(e) use its reasonable best efforts to cause all Registrable Securities offered by such Registration Statement to be registered with or approved by such other federalDebt Financing, provincial or state governmental agencies or authorities as may be necessary in the opinion of counsel to Parent and counsel to the Selling Shareholders to enable the Selling Shareholders to consummate the disposition of such Registrable Securities;
(f) furnish at the effective date of such Registration Statement and the date of closing of the sale of the Registrable Securities (whether or not such sale is underwritten), to each Selling Shareholder, and each Selling Shareholder's underwriters, if any, a signed counterpart of:
(i) an opinion of counsel for Parent, dated the effective date of such Registration Statement (or such date of closing, as applicable), and
(ii) a "comfort" letter signed by the independent public accountants who have certified Parent's financial statements included or incorporated by reference in such Registration Statement, covering substantially the same matters with respect to such Registration Statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities;
(g) notify each Selling Shareholder at any time when a prospectus relating to the Registration is required to be delivered under the Securities Laws, upon discovery that, or upon the happening of any event known to Parent as a result of which, the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and promptly prepare and furnish to each Selling Shareholder a reasonable number of copies of a supplement to or any amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(h) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities Laws and, if required, make including making them available to its Shareholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such Registration Statement, which earnings statement shall satisfy the provisions of Securities Laws;
(i) permit any Selling Shareholder to participate assist in the preparation of such Registration Statement and to include therein material, furnished to Parent one or more offering documents (including assistance in writing, which in the reasonable judgement of the Selling Shareholder should be included and which is reasonably acceptable to Parent;
(j) if any proposed Registration Statement refers to a Selling Shareholder by name or otherwise as the holder of any securities of Parent then: (i) upon reasonable request Parent shall be required to insert therein language, in form and substance reasonably satisfactory to such Selling Shareholder, Parent and the lead managing underwriter(sobtaining industry data), to participate in due diligence sessions and to participate in one or more road shows to market any applicable securities and (c) to cause the effect that management of the ownership by such Selling Shareholder Business to assist in the preparation of such securities is not one or more appropriate offering documents and to assist in preparing other appropriate marketing materials, in each case to be construed as a recommendation by such Selling Shareholder as to used in connection with the investment quality of Parent's securities offered thereby and that such ownership does not imply that such Selling Shareholder will assist in meeting any future financial requirements of Parent; or (ii) in the event that such reference to such Selling Shareholder by name or otherwise is not required by the applicable Securities Laws, any similar federal, provincial or state statute, or any rule or regulation of any other regulatory body having jurisdiction over the offering, then in force, Parent shall be required at the request of such Selling Shareholder to delete the reference to such Selling Shareholder;Debt Financing.
(k) provide At the Closing, Parent shall cause the Company and cause the New Subsidiaries to execute the documents required in connection with the Debt Financing, in such form as shall be maintained a transfer agent approved by Holdings (it being understood that such documents shall not impose any liability or obligation of any kind on Parent or any of its Affiliates, other than the Company and registrar for all Registrable Securities offered by such Registration Statement; andthe New Subsidiaries).
(l) use its best efforts Notwithstanding anything in this Agreement to list the contrary, Parent shall cause the Subsidiaries, prior to the Closing Date, to pay in full all Registrable Securities covered by such Registration Statement on amounts due with respect to capitalized leases to which any securities exchange or trading market on which Parent's Registrable Securities are then listed. The Shareholders shall not have any right to obtain or seek an injunction restraining or otherwise delaying any registration as of the result of any controversy that might arise Subsidiaries is a party with respect to the interpretation or implementation Business, and to purchase the assets which are the subject of this Section 10.4such leases, so that such assets constitute Transferred Assets and, as of the Closing, are free and clear of Liens other than Permitted Liens.
Appears in 1 contract
Parent’s Obligations. If and whenever Parent is required to effect the Registration of any Registrable Securities under the applicable Securities Laws pursuant to this Agreement, Parent will, as expeditiously as possibleagrees to:
(aA) prepare make and keep public information available, as those terms are understood and defined in Rule 144, for as long as a Qualified Shareholder owns shares of Parent Common Stock issued hereunder;
(B) file with the SEC in a timely manner all reports and other documents required of Parent under the Securities Regulators Act and the requisite Registration Statement to effect such Registration and thereafter use its best efforts to cause such Registration Statement to become effectiveExchange Act;
(bC) prepare furnish to any Qualified Shareholder issued shares of Parent Common Stock pursuant to Section 1.1, at any time after the Closing and file with the Securities Regulators such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective (subject to the provisions continued ownership of Section 7.1(b)) and to comply shares of Parent Common Stock, a written confirmation that it has complied with the provisions of the applicable Securities Laws with respect to the disposition of all Registrable Securities offered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Selling Shareholders set forth in such Registration Statement;
(c) furnish to each Selling Shareholder such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference, appropriately legended in the case of those exhibits filed on a confidential basis), and, so long as Parent is required to keep such Registration Statement effective pursuant to paragraph (b) above, such number of copies of the prospectus contained in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed pursuant to the applicable Securities Laws, in conformity with the reporting requirements of Rule 144 at any time after ninety (90) days after the applicable Closing Date, the Securities LawsAct and the Exchange Act, and such other documents, information as may be reasonably requested to avail any such Selling Qualified Shareholder may reasonably requestof any rule or regulation of the SEC that permits the selling of any such shares of Parent Common Stock without registration under Rule 144;
(dD) use its best efforts (x) to register or qualify all Registrable Securities offered by such Registration Statement under such other state or "blue sky" Securities Laws of such jurisdiction where an exemption is not available instruct Parent’s transfer agent in writing, on and as any Selling Shareholder shall reasonably request, (y) to keep such Registration or qualification in effect for so long as such Registration Statement remains in effect and (z) to take any other action that may be necessary or advisable to enable such Selling Shareholders to consummate the disposition in such jurisdictions of the Registrable Securities to be sold by such Selling Shareholders, except that Parent shall not for any such purpose be required to: (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not, but for the requirements of this paragraph, be obligated to be so qualified; (ii) become subject to taxation in any jurisdiction where it would not then be so subject; or (iii) take any action that would subject it to general service of process in any such jurisdiction (except to the extent required by the applicable laws of a particular jurisdiction in connection with the particular offering);
(e) use its reasonable best efforts to cause all Registrable Securities offered by such Registration Statement to be registered with or approved by such other federal, provincial or state governmental agencies or authorities as may be necessary in the opinion of counsel to Parent and counsel to the Selling Shareholders to enable the Selling Shareholders to consummate the disposition of such Registrable Securities;
(f) furnish at the effective date of such Registration Statement and the date of closing of the sale of the Registrable Securities (whether or not such sale is underwritten), to each Selling Shareholder, and each Selling Shareholder's underwriters, if any, a signed counterpart of:
(i) an opinion of counsel for Parent, dated the effective date of such Registration Statement (or such date of closing, as applicable), and
(ii) a "comfort" letter signed by the independent public accountants who have certified Parent's financial statements included or incorporated by reference in such Registration Statement, covering substantially the same matters with respect to such Registration Statement (and the prospectus included therein) and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities;
(g) notify each Selling Shareholder at any time when a prospectus relating after the expiration of six (6) months from Closing to remove any restrictive legend, notations or stop orders applicable to the Registration is required shares of Parent Common Stock issued hereunder, so that they will be eligible for sale pursuant to be delivered under the Securities Laws, upon discovery that, or upon the happening of any event known to Parent Rule 144 without restriction (other than as a result of which, the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, set forth in the light of the circumstances under which they were madeLock-Up Agreement), and promptly prepare and furnish if required by Parent’s transfer agent, cause its counsel to each Selling Shareholder a reasonable number of copies of a supplement to deliver one or any amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(h) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities Laws and, if required, make available to its Shareholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such Registration Statement, which earnings statement shall satisfy the provisions of Securities Laws;
(i) permit any Selling Shareholder to participate in the preparation of such Registration Statement and to include therein material, furnished to Parent in writing, which in the reasonable judgement of the Selling Shareholder should be included and which is reasonably acceptable to Parent;
(j) if any proposed Registration Statement refers to a Selling Shareholder by name or otherwise as the holder of any securities of Parent then: (i) upon reasonable request Parent shall be required to insert therein language, in form and substance reasonably satisfactory to such Selling Shareholder, Parent and the lead managing underwriter(s), opinions to the effect that the ownership by such Selling Shareholder removal of such securities is not to restrictions in such circumstances may be construed as a recommendation by such Selling Shareholder as to effected under the investment quality of Parent's securities offered thereby and that such ownership does not imply that such Selling Shareholder will assist in meeting any future financial requirements of Parent; or (ii) in the event that such reference to such Selling Shareholder by name or otherwise is not required by the applicable Securities Laws, any similar federal, provincial or state statute, or any rule or regulation of any other regulatory body having jurisdiction over the offering, then in force, Parent shall be required at the request of such Selling Shareholder to delete the reference to such Selling Shareholder;
(k) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities offered by such Registration StatementAct; and
(lE) use its best efforts to list all Registrable Securities covered if, for any reason, the shares of Parent Common Stock issued hereunder are represented by such Registration Statement a share certificate, on and at any securities exchange or trading market on which Parent's Registrable Securities are then listed. The Shareholders shall not have any right to obtain or seek an injunction restraining or otherwise delaying any registration as time after the result expiration of any controversy that might arise with respect six (6) months from Closing deliver to the interpretation or implementation of this Section 10.4transfer agent irrevocable instructions that the transfer agent shall reissue a certificate representing such shares without any restrictive legends.
Appears in 1 contract
Samples: Share Purchase Agreement (Harman International Industries Inc /De/)
Parent’s Obligations. If Parent shall use its Reasonable Best Efforts to take, or cause to be taken, all actions and whenever Parent is required to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letter, including using its Reasonable Best Efforts to (i) maintain in effect the Registration of any Registrable Securities under the applicable Securities Laws pursuant to this AgreementDebt Commitment Letter, Parent will, as expeditiously as possible:
(aii) prepare negotiate and file with the Securities Regulators the requisite Registration Statement to effect such Registration and thereafter use its best efforts to cause such Registration Statement to become effective;
(b) prepare and file with the Securities Regulators such amendments and supplements to such Registration Statement as may be necessary to keep such Registration Statement effective (subject to the provisions of Section 7.1(b)) and to comply with the provisions of the applicable Securities Laws enter into definitive agreements with respect to thereto on the disposition of all Registrable Securities offered by such Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Selling Shareholders terms and conditions set forth in such Registration Statement;
the Debt Commitment Letter or on other terms that are not materially less favorable (c) furnish after giving effect to each Selling Shareholder such number of conformed copies of such Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits and documents incorporated by referenceflex provisions), appropriately legended taken as a whole, to Parent than as set forth in the case of those exhibits filed on a confidential basisDebt Commitment Letter (such definitive Agreements, the “Financing Agreements”), and, so long as Parent is required to keep such Registration Statement effective pursuant to paragraph (b) above, such number of copies of the prospectus contained in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed pursuant to the applicable Securities Laws, in conformity with the requirements of the applicable Securities Laws, and such other documents, as such Selling Shareholder may reasonably request;
(d) use its best efforts (x) to register or qualify all Registrable Securities offered by such Registration Statement under such other state or "blue sky" Securities Laws of such jurisdiction where an exemption is not available and as any Selling Shareholder shall reasonably request, (y) to keep such Registration or qualification in effect for so long as such Registration Statement remains in effect and (z) to take any other action that may be necessary or advisable to enable such Selling Shareholders to consummate the disposition in such jurisdictions of the Registrable Securities to be sold by such Selling Shareholders, except that Parent shall not for any such purpose be required to: (i) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not, but for the requirements of this paragraph, be obligated to be so qualified; (ii) become subject to taxation in any jurisdiction where it would not then be so subject; or (iii) take any action satisfy on a timely basis all conditions applicable to Parent in the Financing Agreements that would subject it to general service are within its control (including without limitation the timely payment in full of process in any such jurisdiction all fees, charges and other amounts specified therein) and otherwise comply with its obligations thereunder, (except iv) enforce its rights under the Debt Commitment Letter, including through the initiation of legal proceedings against the lender parties thereto, if and to the extent required necessary to obtain the Debt Financing contemplated thereby, (v) in the event that all conditions in the Debt Commitment Letter have been satisfied, consummate the Debt Financing at Closing on the terms and conditions (including the flex provisions) contemplated by the Debt Commitment Letter and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfied, cause the lenders and other Persons providing the Debt Financing to fund the Debt Financing on the Closing Date. In the event any portion of the Debt Financing becomes unavailable, including if any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after giving effect to all applicable laws of a particular jurisdiction in connection with the particular offeringflex provisions contained therein);
(e) , Parent shall use its reasonable best efforts to cause all Registrable Securities offered by such Registration Statement to be registered with or approved by such other federalarrange for alternative financing, provincial or state governmental agencies or authorities as may be necessary including from alternative sources, in the opinion of counsel to Parent and counsel to the Selling Shareholders to enable the Selling Shareholders amounts sufficient to consummate the disposition Merger and the transactions contemplated hereby with terms and conditions that would not materially and adversely impact the financial condition and results of operations of Parent and its subsidiaries taken as a whole (relative to Parent’s and its subsidiaries’ pro forma financial condition and results of operations if Parent were to effect the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter) (the “Alternative Financing”), as promptly as practicable following the occurrence of such Registrable Securities;
event. In the event the Company arranges for Alternative Financing, all provisions in this Agreement related to the Debt Financing shall apply mutatis mutandis to the Alternative Financing. Parent shall give the Company prompt written notice of (fA) furnish at any event, action or other facts of which it becomes aware, the effective date occurrence or non-occurrence of such Registration Statement which would reasonably be expected to result in all or any material portion of the Debt Financing becoming unavailable pursuant to the terms of the Debt Commitment Letter on a timely basis for completing the Merger and the date other transactions contemplated hereby, (B) any breach or default of closing which it becomes aware by any party to the Debt Commitment Letter or any definitive document relating to the Debt Financing of any provisions of the sale Debt Commitment Letter or any definitive document related to the Debt Financing that would reasonably be expected to result in all or any material portion of the Registrable Securities Debt Financing becoming unavailable pursuant to the terms of the Debt Commitment Letter, (whether C) the receipt of any notice or not such sale is underwritten), other communication from any party to each Selling Shareholder, and each Selling Shareholder's underwriters, if any, a signed counterpart of:
(i) an opinion of counsel for Parent, dated the effective date of such Registration Statement (or such date of closing, as applicable), and
(ii) a "comfort" letter signed by the independent public accountants who have certified Parent's financial statements included or incorporated by reference in such Registration Statement, covering substantially the same matters Debt Commitment Letter with respect to such Registration Statement (and 1) any breach, default, termination or repudiation by any party to the prospectus included therein) and, in Debt Commitment Letter or any definitive document related to the case Debt Financing or any provisions of the accountants' comfort letter, with respect to events subsequent Debt Commitment Letter or any definitive document related to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered Debt Financing or (2) any material dispute or disagreement between or among any parties to the underwriters in underwritten public offerings of securities;
(g) notify each Selling Shareholder at any time when a prospectus relating to the Registration is required to be delivered under the Securities Laws, upon discovery that, or upon the happening of any event known to Parent as a result of which, the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the light of the circumstances under which they were made, and promptly prepare and furnish to each Selling Shareholder a reasonable number of copies of a supplement to Debt Commitment Letter or any amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(h) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Securities Laws and, if required, make available to its Shareholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the effective date of such Registration Statement, which earnings statement shall satisfy the provisions of Securities Laws;
(i) permit any Selling Shareholder to participate in the preparation of such Registration Statement and to include therein material, furnished to Parent in writing, which in the reasonable judgement of the Selling Shareholder should be included and which is reasonably acceptable to Parent;
(j) if any proposed Registration Statement refers to a Selling Shareholder by name or otherwise as the holder of any securities of Parent then: (i) upon reasonable request Parent shall be required to insert therein language, in form and substance reasonably satisfactory to such Selling Shareholder, Parent and the lead managing underwriter(s), to the effect that the ownership by such Selling Shareholder of such securities is not to be construed as a recommendation by such Selling Shareholder as to the investment quality of Parent's securities offered thereby and that such ownership does not imply that such Selling Shareholder will assist in meeting any future financial requirements of Parent; or (ii) in the event that such reference to such Selling Shareholder by name or otherwise is not required by the applicable Securities Laws, any similar federal, provincial or state statute, or any rule or regulation of any other regulatory body having jurisdiction over the offering, then in force, Parent shall be required at the request of such Selling Shareholder to delete the reference to such Selling Shareholder;
(k) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities offered by such Registration Statement; and
(l) use its best efforts to list all Registrable Securities covered by such Registration Statement on any securities exchange or trading market on which Parent's Registrable Securities are then listed. The Shareholders shall not have any right to obtain or seek an injunction restraining or otherwise delaying any registration as the result of any controversy that might arise Financing Agreement with respect to the interpretation obligation to fund the Debt Financing or implementation the amount of the Debt Financing to be funded at Closing or (D) any termination (by any party thereto) of the Debt Commitment Letter. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and shall not permit or agree to any amendment, modification or waiver of the Debt Commitment Letter, in whole or in part, without the prior written consent of the Company, if such amendment, modification or waiver would or would be reasonably expected to (w) reduce the aggregate amount of the Debt Financing contemplated by the Debt Commitment Letter in an amount that would adversely affect or delay Parent’s ability to consummate the Merger and the other transactions contemplated by this Section 10.4Agreement , (x) impose new or additional conditions, or otherwise expand, amend or modify any of the conditions of the Debt Financing if such conditions would adversely affect or delay Parent’s ability to consummate the Merger and the other transactions contemplated by this Agreement, (y) prevent or materially delay, or adversely affect, the consummation of the Debt Financing or Parent’s ability to consummate the Merger and the other transactions contemplated in this Agreement or (z) adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter. Parent shall promptly deliver to the Company copies of any amendment, modification or waiver of the Debt Commitment Letter.
Appears in 1 contract
