Registration of Acquiror Common Stock. (a) Acquiror has prepared and filed with the SEC a registration statement on Form S-3, Registration Number 333-132447 (the “Shelf Registration Statement”), relating to the registration, among other things, of the issuance and resales of shares of Acquiror Common Stock. Acquiror shall, no later than the Closing Date, file with the SEC a prospectus supplement (together with any amendments or supplements thereto, the “Prospectus Supplement”) to the Registration Statement, to permit the resale of the shares of Acquiror Common Stock (the “Registrable Shares”) issued under this Agreement. (b) Acquiror shall use reasonable best efforts to cause the Shelf Registration Statement to remain effective and available for resale of the Registrable Shares and to file with the SEC such amendments and supplements as may be necessary to keep the prospectus included in the Shelf Registration Statement (the “Prospectus”) current and in compliance in all material respects, including filing any post-effective amendments or prospectus supplements thereto, with the Securities Act and the rules and regulations of the SEC promulgated thereunder until the earliest of (i) the expiration of the twenty-four (24) month period following the Closing Date, (ii) the sale of all the Registrable Shares or (iii) the availability of Rule 144(k) of the Securities Act to sell all of the Registrable Shares. (c) The Stockholder Representative, on behalf of each of the Stockholders, covenants and agrees with Acquiror that it will cooperate with Acquiror in connection with the preparation of each Prospectus Supplement prior to and after the Closing Date for so long as Acquiror is obligated to maintain the effectiveness of the Shelf Registration Statement, and will provide to Acquiror, in writing, for use in a Prospectus Supplement or in an amendment to the Shelf Registration Statement, information regarding each of the Stockholders, the plan of distribution for the Registrable Shares and such other information as Acquiror may reasonably request to prepare Prospectus Supplements or amendments to the Shelf Registration Statement and to maintain the effectiveness thereof. (d) Notwithstanding anything to the contrary in this Section 5.12, Acquiror may suspend the availability of the Shelf Registration Statement and any resales of Registrable Shares thereunder (each such period, a “Suspension Period”) (x) upon the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement, the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act or the initiation of an SEC review of the Company’s filings under the Exchange Act, (y) if an event (a “Material Event”) occurs and is continuing as a result of which the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein would, in Acquiror’s reasonable judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (z) the occurrence or existence of any pending corporate development that, in the reasonable discretion of Acquiror, makes it necessary to suspend the availability of the Shelf Registration Statement and any resales of Registrable Shares thereunder, provided Acquiror shall not have the right to suspend the Shelf Registration Statement pursuant to clause (y) or (z) during the twenty-one (21) day period after the Closing Date. Upon the occurrence of any such event, Acquiror shall notify the Stockholder Representative, as agent of each of the Stockholders, that the availability of the Shelf Registration Statement is suspended and, upon receipt of any such notice by the Stockholder Representative, each Stockholder agrees not to sell any Registrable Shares pursuant to the Shelf Registration Statement until the Stockholder Representative is advised in writing by Acquiror that the Shelf Registration Statement may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in the Shelf Registration Statement. Acquiror will use commercially reasonable efforts to ensure that the use of the Shelf Registration Statement may be resumed (A) in the case of clause (x) above, as promptly as is practicable, and use its best efforts to ensure the use of the Shelf Registration Statement, (B) in the case of clause (y) above, as soon as, in the reasonable judgment of Acquiror, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of Acquiror or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (C) in the case of clause (z) above, as soon as in the reasonable discretion of Acquiror, such suspension is no longer appropriate. For the avoidance of doubt (and without prejudice to the proviso contained in the first sentence of this Section 5.12(d)), nothing in this Section 5.12 shall impose any obligation on Acquiror to engage in any discussions regarding a potential corporate development or to cease or complete any such discussion within any time period or otherwise. Acquiror shall be entitled to exercise its right under this Section 5.12(d) to suspend the availability of the Shelf Registration Statement or any Prospectus provided that the aggregate duration of all Suspension Periods shall not exceed thirty (30) days in any three-month period (or sixty (60) days in any three-month period in the event of a Material Event pursuant to which Acquiror has delivered a second notice as required below) or ninety (90) days in any twelve-month period; provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, Acquiror may deliver to the Stockholder Representative on behalf of each of the Stockholders, a second notice to the effect set forth above, which shall have the effect of extending the Suspension Period by up to an additional thirty (30) days, or such shorter period of time as is specified in such second notice. Acquiror shall not be required to specify in any written notice the nature of the event giving rise to the Suspension Period, and the Stockholder Representative and the Stockholders hereby agree to hold such notice and any communications in response thereto in confidence.
Appears in 1 contract
Samples: Merger Agreement (PMC Sierra Inc)
Registration of Acquiror Common Stock. (a) As soon as practicable after the date hereof, Acquiror has prepared and filed shall prepare, and, on the Closing Date, Acquiror shall file with the SEC SEC, and cause to be declared automatically and immediately effective at the time of such filing, one or more registration statements in compliance with the Securities Act (each, a registration statement on Form S-3, Registration Number 333-132447 (the “Shelf Registration Statement”), relating to ) covering the registration, among other things, resale of the issuance and resales of all shares of Acquiror Common Stock. Acquiror shall, no later than the Closing Date, file Stock that are to be issued in connection with the SEC a prospectus supplement payment of the Stock Consideration (such shares, together with any amendments or supplements thereto, the “Prospectus Supplement”) to the Registration Statement, to permit the resale of the shares of Acquiror Common Stock (otherwise issuable hereunder whether at Closing or as part of the Milestone Payment, the “Registrable SharesStock”). Each Registration Statement shall be (x) issued on Form S-3 (except if Acquiror fails to meet one or more of the registrant requirements specified in General Instruction I.A. on Form S-3, such registration shall be on another appropriate form in accordance herewith that allows for the Registrable Stock covered thereby to be registered on a delayed and continuous basis) or (y) pursuant to Rule 424(b) under this Agreementthe Securities Act, a prospectus supplement that shall be deemed to be part of an existing “shelf” registration statement in accordance with Rule 430B under the Securities Act and shall permit a delayed or continuous offering. Acquiror shall cause all Registrable Stock to be listed on Nasdaq and to comply with the listing requirements of Nasdaq.
(b) Acquiror shall use its reasonable best efforts (i) to cause maintain the Shelf Registration Statement to remain effective and available for resale continuous effectiveness of the Registrable Shares and to file with the SEC such amendments and supplements as may be necessary to keep the prospectus included in the Shelf each Registration Statement (and maintain the “Prospectus”current status of the prospectus or prospectuses contained therein) current until the earlier of (A) all such shares of Registrable Stock having been sold pursuant to such Registration Statement or (B) at such time as none of the holders of Registrable Stock issued thereunder are restricted from transferring such Registrable Stock under Rule 144 under the Securities Act, and (ii) subject to Section 7.15(d), to take such other actions as are necessary to permit the Persons who are issued Registrable Stock pursuant to this Agreement to sell such Registrable Stock without restriction as promptly as practicable pursuant to such Registration Statements. In the case of any Registration Statement that is an automatic shelf registration statement, a new registration statement pursuant to Rule 415(a)(6) with respect to the Registrable Stock will be deemed to be an amendment to such Registration Statement for purposes of this Section 7.15, and references in compliance this Section 7.15 to a Registration Statement, except in all material respectsclause (ii) above, including shall include such new registration statement.
(c) At least three (3) Business Days prior to the filing of the Registration Statement or any post-effective prospectus or any amendments or prospectus supplements thereto, with Acquiror shall furnish to the Securities Act Company copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC promulgated thereunder until SEC), which documents will be subject to the earliest of (i) the expiration review and comment of the twenty-four Company (24) month period following it being acknowledged and agreed that if the Closing DateCompany does not object to or comment on the aforementioned documents within the aforementioned three Business Day period, (ii) then they shall be deemed to have consented to and approved the sale use of all such documents), and Acquiror shall consider in good faith the Registrable Shares or (iii) changes reasonably requested by the availability of Rule 144(k) of the Securities Act to sell all of the Registrable Shares.
(c) The Stockholder Representative, on behalf of each of the Stockholders, covenants and agrees with Acquiror that it will cooperate with Acquiror in connection with the preparation of each Prospectus Supplement Company prior to and after the Closing Date for so long as Acquiror is obligated to maintain the effectiveness of the Shelf Registration Statement, and will provide to Acquiror, in writing, for use in a Prospectus Supplement or in an amendment to the Shelf Registration Statement, information regarding each of the Stockholders, the plan of distribution for the Registrable Shares and making any such other information as Acquiror may reasonably request to prepare Prospectus Supplements or amendments to the Shelf Registration Statement and to maintain the effectiveness thereoffiling.
(d) Notwithstanding anything With respect to the contrary in this Section 5.12, Acquiror may suspend the availability of the Shelf any Registration Statement and any resales of Registrable Shares thereunder that has been filed pursuant to Section 7.15(a), (each such period, a “Suspension Period”) (xi) upon the issuance by the SEC of a any stop order suspending the effectiveness of the Shelf Registration Statement, the initiation of proceedings with respect to the Shelf any Registration Statement under Section 8(d) or 8(e) of the Securities Act or the initiation of an SEC review of the Company’s filings under the Exchange Act, any proceedings for that purpose; (yii) if an event (a “Material Event”) occurs and is continuing as a result of which the Shelf any Registration Statement, the Prospectus, any amendment Statement or supplement thereto, related prospectus or any document incorporated or deemed to be incorporated therein by reference therein would, in Acquiror’s reasonable judgment, shall contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading (including, in any such case, as a result of the non-availability of financial statements); or (ziii) the occurrence or existence of any pending corporate development thatif, in the reasonable discretion good faith judgment of AcquirorAcquiror following consultation with legal counsel, makes it necessary would be detrimental to suspend the availability of the Shelf Registration Statement and any Acquiror or its stockholders for resales of Registrable Shares thereunder, provided Acquiror shall not have Stock to be made pursuant to the right to suspend the Shelf Registration Statement pursuant due to (A) the existence of a material development or potential material development involving Acquiror that Acquiror would be obligated to disclose or incorporate by reference in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time, or (B) interference with an actual or potential material financing or business combination transaction involving Acquiror, (I)(1) in the case of clause (ii) above, but subject to clause (yiii) or (z) during the twenty-one (21) day period after the Closing Date. Upon the occurrence of any such eventabove, Acquiror shall notify as promptly as reasonably practicable prepare and file a post-effective amendment to such Registration Statement or a supplement to the Stockholder Representativerelated prospectus so that such Registration Statement or prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and in the case of a post-effective amendment to a Registration Statement, use reasonable best efforts to cause it to become effective as agent promptly as reasonably practicable and (2) in the case of each of clause (i) above, use reasonable best efforts to cause such stop order to be lifted, and (II) Acquiror shall give notice to the Stockholders, Securityholders that the availability of the Shelf such Registration Statement is suspended and, upon receipt of any such notice by the Stockholder Representativenotice, each Stockholder Securityholder agrees that it shall not to sell any Registrable Shares of the registered securities pursuant to the Shelf a Registration Statement until such Securityholder or the Stockholder Securityholder Representative is advised notified by Acquiror of the effectiveness of the post-effective amendment to a Registration Statement provided for in clause (I) above, or until it is notified in writing by Acquiror that the Shelf Registration Statement may be used, and has received copies of . In connection with any additional or supplemental filings that are incorporated or deemed incorporated circumstance covered by reference in the Shelf Registration Statement. Acquiror will use commercially reasonable efforts to ensure that the use of the Shelf Registration Statement may be resumed (A) in the case of clause (xiii) above, as promptly as is practicable, and use its best efforts to ensure the use of the Shelf Registration Statement, (B) in the case of clause (y) above, as soon as, in the reasonable judgment of Acquiror, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of Acquiror or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (C) in the case of clause (z) above, as soon as in the reasonable discretion of Acquiror, such suspension is no longer appropriate. For the avoidance of doubt (and without prejudice to the proviso contained in the first sentence of this Section 5.12(d)), nothing in this Section 5.12 shall impose any obligation on Acquiror to engage in any discussions regarding a potential corporate development or to cease or complete any such discussion within any time period or otherwise. Acquiror shall be entitled to exercise its right under rights pursuant to this Section 5.12(d7.15(d) to suspend the availability of the Shelf Registration Statement or any Prospectus provided that the for no more than twenty-five (25) consecutive days and an aggregate duration of all Suspension Periods shall not exceed thirty (30) days in any three-month period (or sixty (60) days in any three365-month period day period. Acquiror shall promptly notify the Securityholder Representative upon the receipt of any comment letter or request by the SEC, state securities authority or other Governmental Entity for amendments or supplements to any Registration Statement or the prospectus related thereto or for additional information.
(e) All fees and expenses incurred by Acquiror in connection with its performance of its obligations under or in compliance with this Section 7.15 shall be borne by Acquiror. Each Securityholder shall pay any expenses incurred by it in connection with the performance of its obligations under or in compliance with this Section 7.15.
(f) Acquiror shall indemnify and hold harmless, to the fullest extent permitted by applicable Laws, the Securityholders and their Representatives, from and against any Damages to which any Securityholder or any of its Representative may become subject (under the Securities Act or otherwise) to the extent such Damages arise out of, directly or indirectly, any untrue statement of a material fact contained in the event of Registration Statement or any other document filed in accordance with this Section 7.15, or any omission to state therein a Material Event pursuant fact required to which be stated therein or necessary to make the statements therein not misleading; provided, however, that Acquiror has delivered a second notice as required below) or ninety (90) days will not be liable in any twelve-month period; provided that in the such case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, Acquiror may deliver to the Stockholder Representative extent that any such Damages out of, directly or indirectly, any untrue statement or omission, made in reliance upon and in conformity with written information furnished to Acquiror by or on behalf of each the Company, prior to the Closing, the Securityholder Representative or such Securityholder specifically for use in the preparation of the StockholdersRegistration Statement or any other registration statement filed in accordance with this Section 7.15. The Securityholders, on a second notice several basis, shall indemnify and hold harmless, to the effect set forth abovefullest extent permitted by applicable Laws, which shall have Acquiror and its Representatives to the effect of extending same extent as the Suspension Period by up foregoing indemnity from Acquiror, but only with reference to an additional thirty (30) daysinformation furnished in writing to Acquiror, the Company or such shorter period of time as is specified the Securityholder Representative specifically for use in such second notice. Acquiror shall not be required to specify in any written notice the nature preparation of the event giving rise Registration Statement or any other registration statement filed in accordance with this Section 7.15.
(g) Each Securityholder (i) shall furnish to Acquiror such information regarding themselves, their relationship to Acquiror and its Affiliates, their beneficial ownership of Acquiror Common Stock, the Suspension PeriodRegistrable Stock held by them, and the Stockholder Representative intended method of disposition of such securities as is required to be included under the Securities Act in a Registration Statement (or any amendment thereto) or any prospectus with respect to such Securityholder, (ii) shall comply with the prospectus delivery requirements under the Securities Act in connection with the sale or other distribution of Registrable Stock pursuant to a Registration Statement, and (iii) shall report to Acquiror all sales or other distributions by such Securityholder of Registrable Stock pursuant to a Registration Statement. It shall be a condition precedent to the Stockholders hereby agree obligation of Acquiror to hold complete the registration pursuant to this Agreement with respect to the Registrable Securities of any Securityholder that such notice and Securityholder shall have complied with the obligations set forth in Section 7.15(g)(i) above. No Securityholder shall use any communications free writing prospectus (as defined in response thereto Rule 405 under the Securities Act) in confidenceconnection with the sale of Registrable Stock without the prior written consent of Acquiror.
Appears in 1 contract
Samples: Merger Agreement (Pacific Biosciences of California, Inc.)
Registration of Acquiror Common Stock. (a) Acquiror has prepared and Target shall cooperate in preparing and each shall cause to be filed with the SEC, as promptly as reasonably practicable following the date hereof, mutually acceptable proxy materials which shall constitute the Joint Proxy Statement-Prospectus relating to the matters to be submitted to the Acquiror stockholders at the Acquiror Stockholders Meeting and the matters to be submitted to the Target stockholders at the Target Stockholders Meeting (such proxy statement/prospectus, and any amendments or supplements thereto, the "JOINT PROXY STATEMENT-PROSPECTUS") and Acquiror shall prepare and file with the SEC a registration statement on Form S-3, Registration Number 333-132447 (the “Shelf Registration Statement”), relating S-4 with respect to the registration, among other things, of the issuance and resales of shares of Acquiror Common Stock. Acquiror shallStock in the Merger (such Form S-4, no later than the Closing Date, file with the SEC a prospectus supplement (together with and any amendments or supplements thereto, the “"REGISTRATION STATEMENT"). The Joint Proxy Statement-Prospectus Supplement”will be included as a prospectus in and will constitute a part of the Registration Statement as Acquiror's prospectus. Each of Acquiror and Target shall use its reasonable best efforts to have the Joint Proxy Statement-Prospectus cleared by the SEC and the Registration Statement declared effective by the SEC and to keep the Registration Statement effective as long as is necessary to consummate the Merger and the transactions contemplated hereby. Acquiror and Target shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, received from the SEC with respect to the Joint Proxy Statement-Prospectus or Registration Statement. The parties shall cooperate and provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement-Prospectus and the Registration Statement prior to filing such with the SEC, and will provide each other with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement-Prospectus or the Registration Statement shall be made without the approval of both parties, which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the Registration Statement or Joint Proxy Statement-Prospectus, this right of approval shall apply only with respect to permit information relating to the resale other party or its business, financial condition or results of the shares of operations. Acquiror Common Stock (the “Registrable Shares”) issued under this Agreement.
(b) Acquiror shall will use reasonable best efforts to cause the Shelf Joint Proxy Statement-Prospectus to be mailed to Acquiror's stockholders, and Target will use reasonable best efforts to cause the Joint Proxy Statement-Prospectus to be mailed to Target's stockholders, in each case as promptly as practicable after the Registration Statement to remain is declared effective and available for resale under the Securities Act. Each party will advise the other party, promptly after it receives notice thereof, of the Registrable Shares and to file with time when the SEC such amendments and supplements as may be necessary to keep the prospectus included in the Shelf Registration Statement (has become effective, the “Prospectus”) current and in compliance in all material respectsissuance of any stop order, including filing any post-effective amendments or prospectus supplements thereto, with the Securities Act and the rules and regulations suspension of the SEC promulgated thereunder until the earliest of (i) the expiration qualification of the twenty-four (24) month period following the Closing Date, (ii) the sale of all the Registrable Shares or (iii) the availability of Rule 144(k) of the Securities Act to sell all of the Registrable Shares.
(c) The Stockholder Representative, on behalf of each of the Stockholders, covenants and agrees with Acquiror that it will cooperate with Acquiror Common Stock issuable in connection with the preparation Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of each the Joint Proxy Statement-Prospectus Supplement or the Registration Statement. If at any time prior to and after the Closing Date for so long as Effective Time any information relating to Acquiror is obligated to maintain the effectiveness or Target, or any of the Shelf Registration Statementtheir respective affiliates, and will provide to Acquirorofficers or directors, in writing, for use in a Prospectus Supplement should be discovered by Acquiror or Target which should be set forth in an amendment or supplement to the Shelf Registration Statement, information regarding each any of the Stockholders, the plan of distribution for the Registrable Shares and such other information as Acquiror may reasonably request to prepare Prospectus Supplements or amendments to the Shelf Registration Statement and to maintain the effectiveness thereof.
(d) Notwithstanding anything to the contrary in this Section 5.12, Acquiror may suspend the availability of the Shelf Registration Statement and any resales of Registrable Shares thereunder (each such period, a “Suspension Period”) (x) upon the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement, the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act or the initiation Joint Proxy Statement-Prospectus so that any of an SEC review of the Company’s filings under the Exchange Act, (y) if an event (a “Material Event”) occurs and is continuing as a result of which the Shelf Registration Statement, the Prospectus, such documents would not include any amendment or supplement thereto, or any document incorporated by reference therein would, in Acquiror’s reasonable judgment, contain an untrue statement misstatement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or (z) the occurrence or existence of any pending corporate development thattherein, in the reasonable discretion of Acquiror, makes it necessary to suspend the availability light of the Shelf Registration Statement circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and any resales disseminated to the stockholders of Registrable Shares thereunder, provided Acquiror and Target.
(b) Acquiror shall not have also take any action required to be taken under any applicable state securities laws in connection with the right Merger and each of Target and Acquiror shall furnish all information concerning it and the holders of Target Common Stock as may be reasonably requested in connection with any such action.
(c) Acquiror shall use its reasonable best efforts to suspend cause the Shelf Registration Statement pursuant shares of Acquiror Common Stock to clause (y) or (z) during be issued in the twenty-one (21) day period after Merger and upon the exercise of Converted Options to be approved for listing on the AMEX, subject to official notice of issuance, prior to the Closing Date. Upon the occurrence of any such event, Acquiror shall notify the Stockholder Representative, as agent of each of the Stockholders, that the availability of the Shelf Registration Statement is suspended and, upon receipt of any such notice by the Stockholder Representative, each Stockholder agrees not to sell any Registrable Shares pursuant to the Shelf Registration Statement until the Stockholder Representative is advised in writing by Acquiror that the Shelf Registration Statement may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in the Shelf Registration Statement. Acquiror will use commercially reasonable efforts to ensure that the use of the Shelf Registration Statement may be resumed (A) in the case of clause (x) above, as promptly as is practicable, and use its best efforts to ensure the use of the Shelf Registration Statement, (B) in the case of clause (y) above, as soon as, in the reasonable judgment of Acquiror, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of Acquiror or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (C) in the case of clause (z) above, as soon as in the reasonable discretion of Acquiror, such suspension is no longer appropriate. For the avoidance of doubt (and without prejudice to the proviso contained in the first sentence of this Section 5.12(d)), nothing in this Section 5.12 shall impose any obligation on Acquiror to engage in any discussions regarding a potential corporate development or to cease or complete any such discussion within any time period or otherwise. Acquiror shall be entitled to exercise its right under this Section 5.12(d) to suspend the availability of the Shelf Registration Statement or any Prospectus provided that the aggregate duration of all Suspension Periods shall not exceed thirty (30) days in any three-month period (or sixty (60) days in any three-month period in the event of a Material Event pursuant to which Acquiror has delivered a second notice as required below) or ninety (90) days in any twelve-month period; provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, Acquiror may deliver to the Stockholder Representative on behalf of each of the Stockholders, a second notice to the effect set forth above, which shall have the effect of extending the Suspension Period by up to an additional thirty (30) days, or such shorter period of time as is specified in such second notice. Acquiror shall not be required to specify in any written notice the nature of the event giving rise to the Suspension Period, and the Stockholder Representative and the Stockholders hereby agree to hold such notice and any communications in response thereto in confidence.
Appears in 1 contract
Registration of Acquiror Common Stock. (a) The Acquiror has prepared and filed with the SEC a registration statement on Form S-3shall prepare, Registration Number 333-132447 (the “Shelf Registration Statement”)and, relating to the registrationas soon as practicable, among other things, of the issuance and resales of shares of Acquiror Common Stock. Acquiror shall, but in no event later than sixty (60) days after the Closing Date, file with the SEC a registration statement under the Securities Act in the appropriate form (the “Registration Statement”) covering the resale of (i) the Upfront Stock Consideration and (ii) the Milestone Consideration in the form of shares of Acquiror Common Stock, with the number of such shares of Acquiror Common Stock in respect of the Milestone Consideration being registered for resale under the Registration Statement to be reasonably estimated, and agreed to, by the Company and the Securityholder Representative (the “Estimated Milestone Shares”).
(b) The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which shall be either: (i) in the event that the SEC does not review the Registration Statement, ninety (90) days after the Closing Date, or (ii) in the event that the SEC reviews the Registration Statement, one hundred and twenty (120) days after the Closing Date (but in any event, no later than five Business Days following the date that the SEC indicates that it has no further comments on the Registration Statement).
(c) After the Registration Statement has been declared effective by the SEC, the Acquiror shall use its reasonable best efforts to keep the Registration Statement continuously effective until the date that all shares of Acquiror Common Stock covered by the Registration Statement are sold or are able to be sold by the holders thereof by relying on Rule 144 under the Securities Act without any restriction. Without limiting the foregoing, the Acquiror shall (i) prepare and file with the SEC such amendments to the Registration Statement and amendments or supplements to the prospectus supplement used in connection therewith as may be reasonably necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all shares of Acquiror Common Stock covered by the Registration Statement and (together ii) register or qualify all shares of Acquiror Common Stock covered by the Registration Statement under the applicable state securities or blue sky laws. Without limiting the foregoing, if the actual number of shares of Acquiror Common Stock issued or issuable in respect of Milestone Consideration is greater than the Estimated Milestone Shares, then the Acquiror shall file a post-effective amendment to the Registration Statement to cover such additional shares of Acquiror Common Stock and use its reasonable best efforts to have such post-effective amendment declared effective as soon as practicable.
(d) The Acquiror will pay all expenses associated with the Registration Statement and any amendments or supplements thereto, and any actions or filings necessary to maintain the “Prospectus Supplement”) to effectiveness of the Registration Statement, to permit including filing and printing fees, the resale fees and expenses of the Acquiror’s counsel and accounting fees and expenses, costs associated with clearing the shares of Acquiror Common Stock (covered by the “Registrable Shares”) issued Registration Statement for sale under this Agreementapplicable state securities laws and listing fees, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the shares of Acquiror Common Stock being sold.
(be) The Acquiror shall use reasonable best efforts covenants that it will file the reports required to cause the Shelf Registration Statement to remain effective and available for resale of the Registrable Shares and to file with the SEC such amendments and supplements as may be necessary to keep the prospectus included in the Shelf Registration Statement (the “Prospectus”) current and in compliance in all material respects, including filing any post-effective amendments or prospectus supplements thereto, with filed by it under the Securities Act and the rules and regulations Exchange Act in accordance with the requirements of the SEC promulgated thereunder until Securities Act and the earliest of (i) Exchange Act and any similar rule or regulation hereafter adopted by the expiration of SEC. After the twenty-four (24) month period following Registration Statement is declared effective, the Closing DateAcquiror agrees, (ii) at its sole expense, to cause its legal counsel to provide a legal opinion to the Acquiror’s transfer agent that is in form and substance sufficient for such transfer agent to remove all applicable legends in connection with, and to otherwise facilitate, the sale of all the Registrable Shares or (iii) the availability shares of Rule 144(k) of the Securities Act to sell all of the Registrable SharesAcquiror Common Stock issued as Merger Consideration.
(cf) The Stockholder Representative, on behalf of each of Acquiror shall indemnify and hold harmless the Stockholders, covenants Securityholder Indemnified Parties from and agrees with Acquiror that it will cooperate with Acquiror in connection with the preparation of each Prospectus Supplement prior against any Losses to and after the Closing Date for so long as Acquiror is obligated to maintain the effectiveness of the Shelf Registration Statement, and will provide to Acquiror, in writing, for use in a Prospectus Supplement or in an amendment to the Shelf Registration Statement, information regarding each of the Stockholders, the plan of distribution for the Registrable Shares and such other information as Acquiror which any Securityholder Indemnified Party may reasonably request to prepare Prospectus Supplements or amendments to the Shelf Registration Statement and to maintain the effectiveness thereof.
become subject (d) Notwithstanding anything to the contrary in this Section 5.12, Acquiror may suspend the availability of the Shelf Registration Statement and any resales of Registrable Shares thereunder (each such period, a “Suspension Period”) (x) upon the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement, the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act or otherwise) to the initiation of an SEC review of the Company’s filings under the Exchange Actextent such Losses arise out of, (y) if an event (a “Material Event”) occurs and is continuing as a result of which the Shelf Registration Statement, the Prospectusdirectly or indirectly, any amendment or supplement thereto, or any document incorporated by reference therein would, in Acquiror’s reasonable judgment, contain an untrue statement of a material fact contained in the Registration Statement or omit any other document filed in accordance with this Section 5.13, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (z) the occurrence or existence of any pending corporate development thatmisleading; provided, in the reasonable discretion of Acquiror, makes it necessary to suspend the availability of the Shelf Registration Statement and any resales of Registrable Shares thereunder, provided Acquiror shall not have the right to suspend the Shelf Registration Statement pursuant to clause (y) or (z) during the twenty-one (21) day period after the Closing Date. Upon the occurrence of any such event, Acquiror shall notify the Stockholder Representative, as agent of each of the Stockholdershowever, that the availability Acquiror will not be liable in any such case to the extent that any such Losses arise out of, directly or indirectly, any untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Acquiror by or on behalf of any Company Securityholder specifically for use in the preparation of the Shelf Registration Statement is suspended and, upon receipt of any such notice by the Stockholder Representative, each Stockholder agrees not to sell any Registrable Shares pursuant to the Shelf Registration Statement until the Stockholder Representative is advised in writing by Acquiror that the Shelf Registration Statement may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in the Shelf Registration Statement. Acquiror will use commercially reasonable efforts The procedures set forth in Article VIII shall apply to ensure that the use of the Shelf Registration Statement may any claim for indemnification made pursuant to this Section, mutatis mutandis.
(g) The Company Securityholders shall be resumed (A) in the case of clause (x) above, as promptly as is practicable, express and use its best efforts to ensure the use of the Shelf Registration Statement, (B) in the case of clause (y) above, as soon as, in the reasonable judgment of Acquiror, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of Acquiror or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (C) in the case of clause (z) above, as soon as in the reasonable discretion of Acquiror, such suspension is no longer appropriate. For the avoidance of doubt (and without prejudice to the proviso contained in the first sentence intended third party beneficiaries of this Section 5.12(d)), nothing in this Section 5.12 shall impose any obligation on Acquiror to engage in any discussions regarding a potential corporate development or to cease or complete any such discussion within any time period or otherwise. Acquiror shall be entitled to exercise its right under this Section 5.12(d) to suspend the availability of the Shelf Registration Statement or any Prospectus provided that the aggregate duration of all Suspension Periods shall not exceed thirty (30) days in any three-month period (or sixty (60) days in any three-month period in the event of a Material Event pursuant to which Acquiror has delivered a second notice as required below) or ninety (90) days in any twelve-month period; provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, Acquiror may deliver to the Stockholder Representative on behalf of each of the Stockholders, a second notice to the effect set forth above, which Section 5.13 and shall have the effect of extending the Suspension Period by up express and intended right to an additional thirty (30) days, or such shorter period of time as is specified in such second notice. Acquiror shall not be required to specify in any written notice the nature of the event giving rise to the Suspension Period, and the Stockholder Representative and the Stockholders hereby agree to hold such notice and any communications in response thereto in confidenceenforce their rights under this Section 5.13.
Appears in 1 contract
Registration of Acquiror Common Stock. (a) Acquiror has prepared and Target shall cooperate in preparing and each shall cause to be filed with the SEC, as promptly as reasonably practicable following the date hereof, mutually acceptable proxy materials which shall constitute the Joint Proxy Statement-Prospectus relating to the matters to be submitted to the Acquiror stockholders at the Acquiror Stockholders Meeting and the matters to be submitted to the Target stockholders at the Target Stockholders Meeting (such proxy statement/prospectus, and any amendments or supplements thereto, the "JOINT PROXY STATEMENT-PROSPECTUS") and Acquiror shall prepare and file with the SEC a registration statement on Form S-3, Registration Number 333-132447 (the “Shelf Registration Statement”), relating S-4 with respect to the registration, among other things, of the issuance and resales of shares of Acquiror Common Stock. Acquiror shallStock in the Merger (such Form S-4, no later than the Closing Date, file with the SEC a prospectus supplement (together with and any amendments or supplements thereto, the “"REGISTRATION STATEMENT"). The Joint Proxy Statement-Prospectus Supplement”will be included as a prospectus in and will constitute a part of the Registration Statement as Acquiror's prospectus. Each of Acquiror and Target shall use its reasonable best efforts to have the Joint Proxy Statement-Prospectus cleared by the SEC and the Registration Statement declared effective by the SEC and to keep the Registration Statement effective as long as is necessary to consummate the Merger and the transactions contemplated hereby. Acquiror and Target shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, received from the SEC with respect to the Joint Proxy Statement-Prospectus or Registration Statement. The parties shall cooperate and provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement-Prospectus and the Registration Statement prior to filing such with the SEC, and will provide each other with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Joint Proxy Statement-Prospectus or the Registration Statement shall be made without the approval of both parties, which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a party which are incorporated by reference in the Registration Statement or Joint Proxy Statement-Prospectus, this right of approval shall apply only with respect to permit information relating to the resale other party or its business, financial condition or results of the shares of operations. Acquiror Common Stock (the “Registrable Shares”) issued under this Agreement.
(b) Acquiror shall will use reasonable best efforts to cause the Shelf Joint Proxy Statement-Prospectus to be mailed to Acquiror's stockholders, and Target will use reasonable best efforts to cause the Joint Proxy Statement-Prospectus to be mailed to Target's stockholders, in each case as promptly as practicable after the Registration Statement to remain is declared 44 48 effective and available for resale under the Securities Act. Each party will advise the other party, promptly after it receives notice thereof, of the Registrable Shares and to file with time when the SEC such amendments and supplements as may be necessary to keep the prospectus included in the Shelf Registration Statement (has become effective, the “Prospectus”) current and in compliance in all material respectsissuance of any stop order, including filing any post-effective amendments or prospectus supplements thereto, with the Securities Act and the rules and regulations suspension of the SEC promulgated thereunder until the earliest of (i) the expiration qualification of the twenty-four (24) month period following the Closing Date, (ii) the sale of all the Registrable Shares or (iii) the availability of Rule 144(k) of the Securities Act to sell all of the Registrable Shares.
(c) The Stockholder Representative, on behalf of each of the Stockholders, covenants and agrees with Acquiror that it will cooperate with Acquiror Common Stock issuable in connection with the preparation Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of each the Joint Proxy Statement-Prospectus Supplement or the Registration Statement. If at any time prior to and after the Closing Date for so long as Effective Time any information relating to Acquiror is obligated to maintain the effectiveness or Target, or any of the Shelf Registration Statementtheir respective affiliates, and will provide to Acquirorofficers or directors, in writing, for use in a Prospectus Supplement should be discovered by Acquiror or Target which should be set forth in an amendment or supplement to the Shelf Registration Statement, information regarding each any of the Stockholders, the plan of distribution for the Registrable Shares and such other information as Acquiror may reasonably request to prepare Prospectus Supplements or amendments to the Shelf Registration Statement and to maintain the effectiveness thereof.
(d) Notwithstanding anything to the contrary in this Section 5.12, Acquiror may suspend the availability of the Shelf Registration Statement and any resales of Registrable Shares thereunder (each such period, a “Suspension Period”) (x) upon the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement, the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act or the initiation Joint Proxy Statement-Prospectus so that any of an SEC review of the Company’s filings under the Exchange Act, (y) if an event (a “Material Event”) occurs and is continuing as a result of which the Shelf Registration Statement, the Prospectus, such documents would not include any amendment or supplement thereto, or any document incorporated by reference therein would, in Acquiror’s reasonable judgment, contain an untrue statement misstatement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or (z) the occurrence or existence of any pending corporate development thattherein, in the reasonable discretion of Acquiror, makes it necessary to suspend the availability light of the Shelf Registration Statement circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and any resales disseminated to the stockholders of Registrable Shares thereunder, provided Acquiror and Target.
(b) Acquiror shall not have also take any action required to be taken under any applicable state securities laws in connection with the right Merger and each of Target and Acquiror shall furnish all information concerning it and the holders of Target Common Stock as may be reasonably requested in connection with any such action.
(c) Acquiror shall use its reasonable best efforts to suspend cause the Shelf Registration Statement pursuant shares of Acquiror Common Stock to clause (y) or (z) during be issued in the twenty-one (21) day period after Merger and upon the exercise of Converted Options to be approved for listing on the AMEX, subject to official notice of issuance, prior to the Closing Date. Upon the occurrence of any such event, Acquiror shall notify the Stockholder Representative, as agent of each of the Stockholders, that the availability of the Shelf Registration Statement is suspended and, upon receipt of any such notice by the Stockholder Representative, each Stockholder agrees not to sell any Registrable Shares pursuant to the Shelf Registration Statement until the Stockholder Representative is advised in writing by Acquiror that the Shelf Registration Statement may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in the Shelf Registration Statement. Acquiror will use commercially reasonable efforts to ensure that the use of the Shelf Registration Statement may be resumed (A) in the case of clause (x) above, as promptly as is practicable, and use its best efforts to ensure the use of the Shelf Registration Statement, (B) in the case of clause (y) above, as soon as, in the reasonable judgment of Acquiror, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of Acquiror or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (C) in the case of clause (z) above, as soon as in the reasonable discretion of Acquiror, such suspension is no longer appropriate. For the avoidance of doubt (and without prejudice to the proviso contained in the first sentence of this Section 5.12(d)), nothing in this Section 5.12 shall impose any obligation on Acquiror to engage in any discussions regarding a potential corporate development or to cease or complete any such discussion within any time period or otherwise. Acquiror shall be entitled to exercise its right under this Section 5.12(d) to suspend the availability of the Shelf Registration Statement or any Prospectus provided that the aggregate duration of all Suspension Periods shall not exceed thirty (30) days in any three-month period (or sixty (60) days in any three-month period in the event of a Material Event pursuant to which Acquiror has delivered a second notice as required below) or ninety (90) days in any twelve-month period; provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, Acquiror may deliver to the Stockholder Representative on behalf of each of the Stockholders, a second notice to the effect set forth above, which shall have the effect of extending the Suspension Period by up to an additional thirty (30) days, or such shorter period of time as is specified in such second notice. Acquiror shall not be required to specify in any written notice the nature of the event giving rise to the Suspension Period, and the Stockholder Representative and the Stockholders hereby agree to hold such notice and any communications in response thereto in confidence.
Appears in 1 contract
