Transfer of Securities; Suspension. (a) Pfizer agrees that it will not effect any Disposition of the Registrable Securities or its right to purchase the Registrable Securities that would constitute a sale within the meaning of the Securities Act or any applicable state securities laws, except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance with the Securities Act, and that, upon the Company’s reasonable written request, it will promptly notify the Company of any changes in the information set forth in the Registration Statement or the Registration Questionnaire regarding Pfizer or its plan of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. The Company shall not be required to file the Registration Statement if Pfizer fails to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire in accordance with this Section 5.4. (b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) In the event of (i) any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any 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 that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, then the Company shall deliver a notice in writing to Pfizer (a “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until Pfizer’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used. In the event of any Suspension pursuant to clause (i), (ii) or (iii) above, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizer. The Company shall not disclose in any Suspension Notice any material non-public information giving rise to such Suspension. No Suspension shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate of 90 days. (d) Upon the written request of Pfizer in connection with Pfizer’s due diligence requirements, if any, the Company shall make available for inspection by (i) Pfizer and (ii) one firm of accountants or other agents retained by Pfizer (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (B) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential.
Appears in 2 contracts
Samples: Collaborative Research & License Agreement (Icagen Inc), Purchase Agreement (Icagen Inc)
Transfer of Securities; Suspension. (a) Pfizer VPVP agrees that it will shall not effect any Disposition sale, offer to sell, solicitation of offers to buy, disposition of, loan, pledge or grant of any right with respect to any securities of Parent or any derivative instruments, arrangement or securities the Registrable Securities value of which is derived from Parent securities (a “Disposition”) or its right to purchase any securities of Parent or any derivative instruments, arrangement or securities the Registrable Securities value of which is derived from Parent securities that would constitute a sale within the meaning of the Securities Act or any applicable state securities lawsAct, except as contemplated in the Registration Statement referred to in Section 5.1 6.1 hereof or in accordance with the Securities Act, and that, upon the Company’s reasonable written request, that it will shall promptly notify the Company Parent of any changes in the information set forth in the Registration Statement or the Registration Questionnaire regarding Pfizer VPVP or its plan of distribution or other information as distribution. VPVP further agrees that it shall not effect a Disposition of any Securities during the Company may reasonably request fifteen- (15)-trading-day period prior to and ending on the date of the execution of the definitive agreements executed in connection with any registration referred to in ARTICLE V. The Company shall not be required to file the Registration Statement if Pfizer fails to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire in accordance with this Section 5.4Equity Investment.
(b) Except in the event that paragraph (cSection 6.3(c) below hereof applies, the Company shall use its reasonable best efforts toParent shall, at all times during the Registration Period or the Merger Share Registration Period, as applicable, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to purchasers of the Registrable Securities Shares being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide VPVP copies of any documents filed pursuant to Section 6.3(b)(i) hereof and (iii) inform VPVP that Parent has complied with its obligations in Section 6.3(b)(i) hereof (or that, if Parent has filed a post-effective amendment to the Registration Statement that has not yet been declared effective, Parent shall notify VPVP to that effect, shall use its commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and shall promptly notify VPVP pursuant to Section 6.3(b)(iii) hereof when the amendment has become effective).
(c) In Subject to Section 6.3(d) hereof, in the event of (i) any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) the receipt by the Company Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; purpose or (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which that necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any 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 and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, then the Company Parent shall deliver a notice in writing to Pfizer VPVP (a the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer will VPVP shall refrain from selling any Registrable Securities Shares pursuant to the Registration Statement (a “Suspension”) until PfizerVPVP’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the CompanyParent, or until it is advised in writing by the Company Parent that the current Prospectus may be used. In the event of any Suspension pursuant to clause (i)Suspension, (ii) or (iii) above, the Company will Parent shall use its commercially reasonable best efforts, consistent with the best interests of the Company Parent and its stockholders, to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizer. The Company shall not disclose in any Suspension Notice any material non-public information giving rise to such Suspension. No Suspension shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate of 90 daysVPVP.
(d) Upon In the written request event VPVP is prohibited from selling Warrant Shares under the Registration Statement as a result of Pfizer Suspensions on more than two (2) occasions of more than forty-five (45) days each in connection with Pfizer’s due diligence requirementsany twelve- (12)-month period, if any, the Company Parent shall make available for inspection by (i) Pfizer and (ii) one firm of accountants or other agents retained by Pfizer (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties pay to VPVP liquidated damages in an amount equal to 1.0% of the Company (collectively, total aggregate purchase price of the “Records”)Registrable Shares registered on such Registration Statement then held by VPVP if, as shall be reasonably deemed necessary by a result of such Suspensions, VPVP is prohibited from selling Warrant Shares under such Registration Statement for a period that exceeds sixty (60) consecutive days or one hundred twenty (120) days in the aggregate in any twelve- (12)-month period and for each Inspector, and cause the Company’s officers, directors and employees to supply all information thirty- (30)-day period thereafter during which any Inspector may reasonably requestsuch prohibition continues; provided, however, that each Inspector in no event shall agree Parent be obligated to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use pay more than 1.0% of any Record or other information which the Company determines in good faith to be confidential, and total aggregate purchase price of which determination the Inspectors are so notified, unless (A) the disclosure of Warrant Shares registered on such Records is necessary to avoid or correct a misstatement or omission Registration Statement then held by VPVP in any Registration Statement or is otherwise required thirty- (30)-day period.
(e) In the event of a sale of Registrable Shares by VPVP under the Securities ActRegistration Statement, (B) VPVP must also deliver to Parent’s transfer agent, with a copy to Parent, a Certificate of Subsequent Sale substantially in the release of such Records is ordered pursuant to a finalform attached hereto as Exhibit C, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) so that the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialRegistrable Shares may be properly transferred.
Appears in 2 contracts
Samples: Stockholder Agreement (Aviza Technology, Inc.), Stockholder Agreement (New Athletics, Inc.)
Transfer of Securities; Suspension. (a) Pfizer Each Purchaser agrees that it will in case of any disposition of its Securities not effect any Disposition made pursuant to the Registration Statement to (i) a third party who agrees to be bound by the provisions of this Section 7 and makes the Registrable Securities representations to the Company contained in Section 4 herein or (ii) its right to purchase the Registrable Securities that would constitute partners as part of a sale within the meaning distribution of all or part of the Securities Act or any applicable state securities laws(in each case the "Transferee", except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance and together with the Securities ActPurchasers, and thatthe "Holders"), upon the Company’s reasonable written request, it such Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Holders or the Registration Questionnaire regarding Pfizer or its plan their plans of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. distribution. The Company shall not be required agrees, in case of such sale, transfer or distribution (to the extent made in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement if Pfizer fails or a supplement to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire related Prospectus, naming each Transferee as a Selling Shareholder in accordance with this Section 5.4the provisions of the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide each Holder copies of any documents filed pursuant to Section 7.4(b)(i); and (iii) inform each Holder that the Company has complied with its obligations in Section 7.4(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its reasonable best efforts
(i) herein when the amendment has become effective).
(c) In Subject to paragraph (d) below, in the event of (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (v) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such a Registration Statement or related Prospectus is premature, would have an adverse effect on the Company or is otherwise inadvisable, then the Company shall deliver a notice certificate in writing to Pfizer each Holder (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until Pfizer’s such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizereach Holder. The Company shall not disclose in In addition to and without limiting any Suspension Notice any material non-public information giving rise other remedies (including, without limitation, at law or at equity) available to such Suspension. No Suspension Holder, such Holder shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate be entitled to specific performance in the event that the Company fails to comply with the provisions of 90 daysthis Section 7.4(c).
(d) Upon Notwithstanding the foregoing paragraphs of this Section 7.4, no Holder shall be prohibited from selling Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than 30 days each in any twelve month period unless, in the good faith judgment of the Board of Directors, upon the written opinion of counsel, the sale of Securities under the Registration Statement in reliance on this paragraph 7.4(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, each Holder may sell Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Securities. Upon receipt of a request of Pfizer in connection with Pfizer’s due diligence requirements, if anytherefor, the Company shall make available for inspection will provide an adequate number of current Prospectuses to such Holder and to supply copies to any other parties requiring such Prospectuses.
(f) Each Holder acknowledges and agrees that the Securities sold pursuant to the Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) Pfizer the Securities have been sold in accordance with such Registration Statement and (ii) one firm the requirement of accountants or other agents retained delivering a current Prospectus has been satisfied.
(g) In the event of a sale of Securities by Pfizer (collectivelyany Holder pursuant to the Registration Statement, such Holder shall deliver to the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties Company's transfer agent an appropriate notification of the Company (collectivelysale, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, so that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (B) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialmay be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P), Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Transfer of Securities; Suspension. (a) Pfizer Each Purchaser agrees that it will in case of any disposition of its Securities not effect any Disposition made pursuant to the Registration Statement to (i) a third party who agrees to be bound by the provisions of this Section 7 and makes the Registrable Securities representations to the Company contained in Section 4 hereof or (ii) its right to purchase the Registrable Securities that would constitute partners as part of a sale within the meaning distribution of all or part of the Securities Act or any applicable state securities laws(in each case the "Transferee", except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance and together with the Securities ActPurchasers, and thatthe "Holders"), upon the Company’s reasonable written request, it such Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Holders or the Registration Questionnaire regarding Pfizer or its plan their plans of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. distribution. The Company shall not be required agrees, in case of such sale, transfer or distribution (to the extent made in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement if Pfizer fails or a supplement to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire related Prospectus, naming each Transferee as a Selling Shareholder in accordance with this Section 5.4the provisions of the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide each Holder copies of any documents filed pursuant to Section 7.4(b)(i); and (iii) inform each Holder that the Company has complied with its obligations in Section 7.4(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify each Holder pursuant to Section 7.4(b)(i) hereof when the amendment has become effective).
(c) In Subject to paragraph (d) below, in the event of (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (v) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such a Registration Statement or related Prospectus is premature, would have an adverse effect on the Company or is otherwise inadvisable, then the Company shall deliver a notice certificate in writing to Pfizer each Holder (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until Pfizer’s such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizereach Holder. The Company shall not disclose in In addition to and without limiting any Suspension Notice any material non-public information giving rise other remedies (including, without limitation, at law or at equity) available to such Suspension. No Suspension Holder, such Holder shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate be entitled to specific performance in the event that the Company fails to comply with the provisions of 90 daysthis Section 7.4(c).
(d) Upon Notwithstanding the foregoing paragraphs of this Section 7.4, no Holder shall be prohibited from selling Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than 30 days each in any twelve month period unless, in the good faith judgment of the Board of Directors, upon the written opinion of counsel, the sale of Securities under the Registration Statement in reliance on this paragraph 7.4(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, each Holder may sell Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Securities. Upon receipt of a request of Pfizer in connection with Pfizer’s due diligence requirements, if anytherefor, the Company shall make available for inspection will provide an adequate number of current Prospectuses to such Holder and to supply copies to any other parties requiring such Prospectuses.
(f) Each Holder acknowledges and agrees that the Securities sold pursuant to the Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) Pfizer the Securities have been sold in accordance with such Registration Statement and (ii) one firm the requirement of accountants or other agents retained delivering a current prospectus has been satisfied.
(g) In the event of a sale of Securities by Pfizer (collectivelyany Holder pursuant to the Registration Statement, such Holder shall deliver to the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties Company's transfer agent an appropriate notification of the Company (collectivelysale, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, so that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (B) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialmay be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P), Securities Purchase Agreement (Proxim Corp)
Transfer of Securities; Suspension. (a) Pfizer Each Purchaser agrees that it will in case of any disposition of its Securities not effect any Disposition made pursuant to the Registration Statement to (i) a third party who agrees to be bound by the provisions of this Section 7 and makes the Registrable Securities representations to the Company contained in Section 4 herein or (ii) its right to purchase the Registrable Securities that would constitute partners as part of a sale within the meaning distribution of all or part of the Securities Act or any applicable state securities laws(in each case the "Transferee", except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance and together with the Securities ActPurchasers, and thatthe "Holders"), upon the Company’s reasonable written request, it such Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Holders or the Registration Questionnaire regarding Pfizer or its plan their plans of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. distribution. The Company shall not be required agrees, in case of such sale, transfer or distribution (to the extent made in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement if Pfizer fails or a supplement to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire related Prospectus, naming each Transferee as a Selling Shareholder in accordance with this Section 5.4the provisions of the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide each Holder copies of any documents filed pursuant to Section 7.4(b)(i); and (iii) inform each Holder that the Company has complied with its obligations in Section 7.4(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify each Holder pursuant to Section 7.4(b)
(i) herein when the amendment has become effective).
(c) In Subject to paragraph (d) below, in the event of (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (v) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such a Registration Statement or related Prospectus is premature, would have an adverse effect on the Company or is otherwise inadvisable, then the Company shall deliver a notice certificate in writing to Pfizer each Holder (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until Pfizer’s such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizereach Holder. The Company shall not disclose in In addition to and without limiting any Suspension Notice any material non-public information giving rise other remedies (including, without limitation, at law or at equity) available to such Suspension. No Suspension Holder, such Holder shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate be entitled to specific performance in the event that the Company fails to comply with the provisions of 90 daysthis Section 7.4(c).
(d) Upon Notwithstanding the foregoing paragraphs of this Section 7.4, no Holder shall be prohibited from selling Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than 30 days each in any twelve month period unless, in the good faith judgment of the Board of Directors, upon the written opinion of counsel, the sale of Securities under the Registration Statement in reliance on this paragraph 7.4(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, each Holder may sell Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Securities. Upon receipt of a request of Pfizer in connection with Pfizer’s due diligence requirements, if anytherefor, the Company shall make available for inspection will provide an adequate number of current Prospectuses to such Holder and to supply copies to any other parties requiring such Prospectuses.
(f) Each Holder acknowledges and agrees that the Securities sold pursuant to the Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) Pfizer the Securities have been sold in accordance with such Registration Statement and (ii) one firm the requirement of accountants or other agents retained delivering a current Prospectus has been satisfied.
(g) In the event of a sale of Securities by Pfizer (collectivelyany Holder pursuant to the Registration Statement, such Holder shall deliver to the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties Company's transfer agent an appropriate notification of the Company (collectivelysale, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, so that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (B) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialmay be properly transferred.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P), Securities Purchase Agreement (Warburg Pincus Private Equity Viii L P)
Transfer of Securities; Suspension. (a) Pfizer Each Purchaser agrees that it will in case of any disposition of its Securities not effect any Disposition made pursuant to the Registration Statement to (i) a third party who agrees to be bound by the provisions of this Section 7 and makes the Registrable Securities representations to the Company contained in Section 4 herein or (ii) its right to purchase the Registrable Securities that would constitute partners as part of a sale within the meaning distribution of all or part of the Securities Act or any applicable state securities laws(in each case the "Transferee", except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance and together with the Securities ActPurchasers, and thatthe "Holders"), upon the Company’s reasonable written request, it such Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Holders or the Registration Questionnaire regarding Pfizer or its plan their plans of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. distribution. The Company shall not be required agrees, in case of such sale, transfer or distribution (to the extent made in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement if Pfizer fails or a supplement to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire related Prospectus, naming each Transferee as a Selling Shareholder in accordance with this Section 5.4the provisions of the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide each Holder copies of any documents filed pursuant to Section 7.4(b)(i); and (iii) inform each Holder that the Company has complied with its obligations in Section 7.4(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify each Holder pursuant to Section 7.4(b)(i) herein when the amendment has become effective).
(c) In Subject to paragraph (d) below, in the event of (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (v) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such a Registration Statement or related Prospectus is premature, would have an adverse effect on the Company or is otherwise inadvisable, then the Company shall deliver a notice certificate in writing to Pfizer each Holder (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until Pfizer’s such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizereach Holder. The Company shall not disclose in In addition to and without limiting any Suspension Notice any material non-public information giving rise other remedies (including, without limitation, at law or at equity) available to such Suspension. No Suspension Holder, such Holder shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate be entitled to specific performance in the event that the Company fails to comply with the provisions of 90 daysthis Section 7.4(c).
(d) Upon Notwithstanding the foregoing paragraphs of this Section 7.4, no Holder shall be prohibited from selling Securities under the Registration Statement as a result of Suspensions on more than three occasions of not more than 30 days each in any twelve month period unless, in the good faith judgment of the Board of Directors, upon the written opinion of counsel, the sale of Securities under the Registration Statement in reliance on this paragraph 7.4(d) would be reasonably likely to cause a violation of the Securities Act or the Exchange Act and result in liability to the Company.
(e) Provided that a Suspension is not then in effect, each Holder may sell Securities under the Registration Statement, provided that it arranges for delivery of a current Prospectus to the transferee of such Securities. Upon receipt of a request of Pfizer in connection with Pfizer’s due diligence requirements, if anytherefor, the Company shall make available for inspection will provide an adequate number of current Prospectuses to such Holder and to supply copies to any other parties requiring such Prospectuses.
(f) Each Holder acknowledges and agrees that the Securities sold pursuant to the Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) Pfizer the Securities have been sold in accordance with such Registration Statement and (ii) one firm the requirement of accountants or other agents retained delivering a current Prospectus has been satisfied.
(g) In the event of a sale of Securities by Pfizer (collectivelyany Holder pursuant to the Registration Statement, such Holder shall deliver to the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties Company's transfer agent an appropriate notification of the Company (collectivelysale, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, so that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (B) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialmay be properly transferred.
Appears in 1 contract
Transfer of Securities; Suspension. (a) Pfizer The Purchasers agree that in case of any disposition of Securities to (A) a third party who agrees that it will not effect any Disposition to be bound by the provisions of this Section 3 and makes the Registrable Securities representations to the Company contained in Section 2.2 hereof or its right to purchase (B) the Registrable Securities that would constitute Purchasers’ general or limited partners as part of a sale within the meaning distribution of all or part of the Securities Act or any applicable state securities laws, except as contemplated (in the Registration Statement referred to in Section 5.1 or in accordance each case a “Transferee,” and together with the Securities ActPurchasers, and thatthe “Holders”), upon the Company’s reasonable written request, it Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Holders or the Registration Questionnaire regarding Pfizer or its plan their plans of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. distribution. The Company shall not be required agrees, in case of such sale, transfer or distribution, to promptly file one or more post-effective amendments to the Registration Statement if Pfizer fails or a supplement to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire related Prospectus, naming each Transferee as a selling stockholder in accordance with this Section 5.4the provisions of the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (A) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (B) provide each Holder copies of any documents filed pursuant to Section 3.15(b); and (C) inform each Holder that the Company has complied with its obligations in Section 3.15(b) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify each Holder pursuant to Section 3.15(b) hereof when the amendment has become effective).
(c) In Subject to paragraph (d) below, in the event (A) of (i) any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (iiB) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iiiC) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (ivD) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which not otherwise covered by clause (E) below which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (E) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such a Registration Statement or related Prospectus is reasonably likely to have a seriously detrimental effect on the Company, then then, in the case of each of (A) through (E) above, the Company shall deliver a notice certificate in writing to Pfizer each Holder (a the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until Pfizersuch Holder’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and such Holder has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizereach Holder. The Company shall not disclose in In addition to and without limiting any Suspension Notice any material non-public information giving rise other remedies (including, without limitation, at law or at equity) available to such Suspension. No Suspension Holder, such Holder shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate be entitled to specific performance in the event that the Company fails to comply with the provisions of 90 daysthis Section 3.16(c).
(d) Upon Notwithstanding the written request foregoing paragraphs of Pfizer in connection with Pfizer’s due diligence requirementsthis Section 3.16, if any, the Company shall make available for inspection by (i) Pfizer and (ii) one firm of accountants or other agents retained by Pfizer (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure no Suspension under clause (E) of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, Section 3.16(c) shall continue for more than one period of no more than thirty (30) days and (B) the release Company shall not deliver more than one Suspension Notice under such clause in any twelve-month period.
(e) Provided that a Suspension is not then in effect, each Holder may sell Registrable Securities under the Registration Statement, provided, to the extent required by applicable law, that it arranges for delivery of a current Prospectus to the transferee of such Records is ordered Securities. Upon receipt of a request therefor, the Company will provide an adequate number of current Prospectuses to such Holder and to supply copies to any other parties requiring such Prospectuses.
(f) In the event of a sale of Registrable Securities by any Holder pursuant to a finalthe Registration Statement, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available Holder shall deliver to the public other than by disclosure in violation Company’s transfer agent an appropriate notification of this or any other document contemplated hereby. Pfizer agrees the sale, so that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialSecurities may be properly transferred.
Appears in 1 contract
Samples: Securities Purchase Agreement (Secure Computing Corp)
Transfer of Securities; Suspension. (a) Pfizer The Purchaser agrees that it will not effect in case of any Disposition disposition of its Securities to (i) a third party who agrees to be bound by the Registrable Securities provisions of this Section 7 and makes the representations to the Company contained in Sections 4.1 through Section 4.5 hereof or its right to purchase (ii) the Registrable Securities that would constitute Purchaser's partners as part of a sale within the meaning distribution of all or part of the Securities Act or any applicable state securities laws(in each case a "Transferee", except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance and together with the Securities ActPurchaser, and thatthe "Holders"), upon the Company’s reasonable written request, it Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Holders or the Registration Questionnaire regarding Pfizer or its plan their plans of distribution or other information as the Company may reasonably request in connection with any registration referred to in ARTICLE V. distribution. The Company shall not be required agrees, in case of such sale, transfer or distribution (to the extent made in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement if Pfizer fails or a supplement to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire related Prospectus, naming each Transferee as a Selling Stockholder (as defined below) in accordance with this Section 5.4the provisions of the Securities Act.
(b) Except in the event that paragraph (c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide each Holder copies of any documents filed pursuant to Section 7.4(b)(i); and (iii) inform each Holder that the Company has complied with its obligations in Section 7.4(b)(i) (or that, if the Company has filed a post-effective amendment to the Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its reasonable best efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify each Holder pursuant to Section 7.4(b)(i) hereof when the amendment has become effective).
(c) In Subject to paragraph (d) below, in the event of (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to a Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which not otherwise covered by clause (v) below which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (v) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such a Registration Statement or related Prospectus, is reasonably likely to have a seriously detrimental effect on the Company, then the Company shall deliver a notice certificate in writing to Pfizer each Holder (a “the "Suspension Notice”") to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “"Suspension”") until Pfizer’s such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will use its reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice to Pfizereach Holder. The Company shall not disclose in In addition to and without limiting any Suspension Notice any material non-public information giving rise other remedies (including, without limitation, at law or at equity) available to such Suspension. No Suspension Holder, such Holder shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate be entitled to specific performance in the event that the Company fails to comply with the provisions of 90 daysthis Section 7.4(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.4, no Suspension under clause (v) of Section 7.4(c) shall continue for more than thirty (30) days and the Company shall not deliver more than one Suspension Notice under such clause in any twelve-month period.
(e) Provided that a Suspension is not then in effect, each Holder may sell Registrable Securities under the Registration Statement, provided, to the extent required by applicable law, that it arranges for delivery of a current Prospectus to the transferee of such Securities. Upon the written receipt of a request of Pfizer in connection with Pfizer’s due diligence requirements, if anytherefor, the Company shall make available for inspection will provide an adequate number of current Prospectuses to such Holder and to supply copies to any other parties requiring such Prospectuses.
(f) Each Holder acknowledges and agrees that the Registrable Securities sold pursuant to the Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) Pfizer the Registrable Securities have been sold in accordance with such Registration Statement and (ii) one firm any applicable requirement of accountants or other agents retained delivering a current Prospectus has been satisfied.
(g) In the event of a sale of Registrable Securities by Pfizer (collectivelyany Holder pursuant to the Registration Statement, such Holder shall deliver to the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties Company's transfer agent an appropriate notification of the Company (collectivelysale, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, so that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the Securities Act, (B) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (C) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidentialmay be properly transferred.
Appears in 1 contract
Transfer of Securities; Suspension. (a) Pfizer The Purchaser agrees that it will not effect in case of any Disposition disposition of the Registrable its Securities or its right (other than pursuant to purchase the Registrable Securities that would constitute a sale within the meaning of the Securities Act or any applicable state securities laws, except as contemplated in the Registration Statement referred to in Section 5.1 or in accordance Statement) effected with the Securities Act, and that, upon the Company’s reasonable written requestconsent pursuant to Section 7.1(b) to a third party who agrees to be bound by the provisions of Section 5.4 (as if it were considered the “Purchaser” hereunder) and this Section 8 and makes the representations to the Company contained in Section 4 (other than the representation contained in Section 4.8) (the “Transferee”, it and together with the Purchaser, the “Holders”), the Purchaser will promptly notify the Company of any changes in the information set forth in any Registration Statement regarding the Holders or their plans of distribution. The Company agrees, in case of such disposition (to the extent made in accordance with Section 7.1), to use its commercially reasonable efforts to file one or more supplements to the Prospectus, and, if required by applicable law, to file with the SEC a post-effective amendment to the Registration Statement Statement, naming each Transferee that is an Affiliate of Purchaser as a selling stockholder, in each case in accordance with the provisions of the Securities Act and in such manner as to permit such Holder to deliver a lawful Prospectus to purchasers of the Registrable Securities; provided, that each Transferee that wishes to be included in a supplement to the Prospectus or such post-effective amendment shall have provided the Registration Questionnaire Company with all necessary information regarding Pfizer the Transferee or its plan of distribution or other information as the Company may shall reasonably request request; provided, further, that in connection with any registration referred to in ARTICLE V. The no event shall the Company shall not be required to file the Registration Statement if Pfizer fails a post-effective amendment to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire in accordance with this Section 5.4name any Transferee other than any Transferee that is an Affiliate of Purchaser as a selling stockholder.
(b) Except in the event that paragraph (cSection 8.3(c) below applies, the Company shall use its reasonable best efforts to, at all times during the Registration Period, promptly (i) prepare and file from time to time with the SEC a post-effective amendment to the any Registration Statement, Statement or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that such Registration Statement will not 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, and so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) provide each Holder copies of any documents filed pursuant to this Section 8.3(b); and (iii) inform each Holder that the Company has complied with its obligations in this Section 8.3(b) (or that, if the Company has filed a post-effective amendment to a Registration Statement which has not yet been declared effective, the Company will notify each Holder to that effect, will use its commercially reasonable efforts to secure the effectiveness of such post-effective amendment as promptly as possible and will promptly notify each Holder pursuant to this Section 8.3(b) when the amendment has become effective).
(c) In the event of (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the a Registration Statement for amendments or supplements to a the Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a the Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the Company’s election to delay the disclosure of material non-public information concerning the Company, the disclosure of which at the time is not, in the good faith judgment of the Board of Directors of the Company, in the best interest of the Company; or (v) any event or circumstance which which, upon the advice of its counsel, necessitates the making of any changes in the Registration Statement or Prospectus, or any document incorporated or deemed to be incorporated therein by reference, so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and that, or that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit any omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (v) the Company determines in good faith that offers and sales pursuant to the Registration Statement should not be made by reason of the presence of material undisclosed circumstances or developments with respect to which the disclosure that could be required in such Registration Statement or related Prospectus (A) is premature, (B) could reasonably be expected to have an adverse effect on the Company or (C) is otherwise inadvisable, then the Company shall deliver a notice certificate in writing to Pfizer each Holder (a the “Suspension Notice”) to the effect of the foregoing and, upon receipt of such Suspension Notice, Pfizer such Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until Pfizersuch Holder’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the current Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such Prospectus. In the event of any Suspension pursuant to clause (i), (ii) or (iii) aboveSuspension, the Company will shall use its commercially reasonable best efforts, consistent with the best interests of the Company and its stockholders, efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably practicable on the earliest possible date after the delivery of a Suspension Notice to Pfizer. The Company shall not disclose in any Suspension Notice any material non-public information giving rise to such Suspension. No Suspension shall exceed 30 consecutive days and, during any 365-day period, Suspensions shall not exceed an aggregate of 90 dayseach Holder.
(d) Upon The Company shall be entitled to exercise its rights to deliver a Suspension Notice under Section 8.3(c) to suspend the written request availability of Pfizer a Registration Statement or related Prospectus, without incurring or accruing any obligation to pay the amounts provided for in connection with Pfizer’s due diligence requirementsSection 8.7(b), if anyfor one or more periods not to exceed, in the aggregate for all Registration Statements and Prospectuses, 45 consecutive days in any 90-day period and 90 days in any 365-day period (such period during which the availability of any Registration Statement and related Prospectus is suspended being a “Suspension Period”).
(e) Provided that a Suspension is not then in effect, each Holder may sell Registrable Securities under the Registration Statements, provided that it arranges for delivery of a current Prospectus to the transferee of such Registrable Securities.
(f) Each Holder acknowledges and agrees that the Registrable Securities sold pursuant to the Registration Statements are not transferable on the books of the Company shall make available for inspection unless the stock certificate submitted to the transfer agent evidencing such Registrable Securities is accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) Pfizer the Registrable Securities have been sold in accordance with the relevant Registration Statement and (ii) one firm the requirement of accountants or other agents retained delivering a current Prospectus has been satisfied.
(g) The Company shall, promptly following the effectiveness of each Registration Statement, cause to be delivered to the transfer agent for the Registrable Securities an opinion of counsel satisfactory to the transfer agent advising that the Registrable Securities covered by Pfizer (collectively, the “Inspectors”), all pertinent financial Registration Statement have been registered under the Securities Act and other records, and pertinent corporate documents and properties that the stock certificates for the Registrable Securities sold pursuant to the Registration Statement need not include a legend restricting the resale of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to Pfizer) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (A) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required shares under the Securities Act, (B) the release ; provided that each seller of such Records is ordered Registrable Securities sold pursuant to the Registration Statement shall confirm that it has fulfilled its obligations under the Securities Act as a final, non-appealable subpoena or order from selling holder.
(h) In the event of a court or government body sale of competent jurisdiction, or (C) the information in such Records has been made generally available Registrable Securities by any Holder pursuant to the public other than by disclosure in violation of this or any other document contemplated hereby. Pfizer agrees that it shallRegistration Statements, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice Holder shall deliver to the Company and allow Company’s transfer agent an appropriate notification of the Companysale, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, so that the Records deemed confidentialRegistrable Securities may be properly transferred.
Appears in 1 contract
