Transfer of Securities; Suspension. (a) The Manager agrees that it will not offer to sell or make any sale, assignment, pledge, hypothecation or other transfer with respect to the Registrable Securities that would constitute a sale within the meaning of the Securities Act except pursuant to (i) the Registration Statement, (ii) Rule 144 or any successor rule thereto or (iii) pursuant to an applicable exemption from registration under applicable federal and state securities laws and that it will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the Trust, Manager or the intended plan of distribution of the Registrable Securities to the extent required by applicable securities laws. (b) In addition to any suspension rights under paragraph (c) below, the Company may, upon the occurrence of any event or the existence of any state of facts that, in the judgment of the Company’s legal counsel, renders advisable the suspension of the disposition of Registrable Securities covered by the Registration Statement or the use of the Prospectus due to pending corporate developments, public filings with the SEC or other similar events, suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus for a period as short as reasonably practical in the circumstances and, in any event, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt of such Suspension Event Notice, will discontinue (and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(b), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trust. (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 the Registration Statement or 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; or (iii) any event or circumstance 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, 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 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, during the Registration Period, then the Company shall deliver a certificate in writing to the Manager (the “Suspension Notice”) to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt of such Suspension Notice, will refrain (and cause the Trust to refrain) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed. In the event of any Suspension, the Company will use its commercially reasonable efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably possible after delivery of a Suspension Notice to the Manager. Any Suspension and Suspension Notice described in this Section 2.2(c) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. (d) In order to enforce the provisions set forth in Sections 2.2(b) and (c) above, the Company may impose stop transfer instructions with respect to the sale of Registrable Securities by the Trust until the end of the applicable suspension period. (e) If so directed by the Company, the Manager shall deliver to the Company all physical copies of the Prospectus and any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice or Suspension Notice. (f) The Manager may sell the Registrable Securities under the Registration Statement provided that neither an Event Suspension nor a Suspension is then in effect, the Manager sells in accordance with the plan of distribution in the Prospectus, and the Manager arranges for delivery of a current Prospectus (as supplemented) to any transferee receiving such Registrable Securities in compliance with the Prospectus delivery requirements of the Securities Act.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dominion Energy, Inc), Registration Rights Agreement (Dominion Energy, Inc)
Transfer of Securities; Suspension. (a) The Manager Each Purchaser agrees that it will in case of any disposition of its Securities not offer to sell or make any sale, assignment, pledge, hypothecation or other transfer with respect made pursuant to the Registrable Securities that would constitute a sale within the meaning of the Securities Act except pursuant Registration Statement to (i) a third party who agrees to be bound by the Registration Statement, provisions of this Section 7 and makes the representations to the Company contained in Section 4 herein or (ii) Rule 144 its partners as part of a distribution of all or any successor rule thereto or part of the Securities (iii) pursuant to an applicable exemption from registration under applicable federal in each case the "Transferee", and state securities laws and that it together with the Purchasers, the "Holders"), such Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the TrustHolders or their plans of distribution. The Company agrees, Manager in case of such sale, transfer or the intended plan of distribution of the Registrable Securities (to the extent required by applicable securities lawsmade in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement or a supplement to the related Prospectus, naming each Transferee as a Selling Shareholder in accordance with the provisions of the Securities Act.
(b) In addition to any suspension rights under Except in the event that paragraph (c) belowbelow applies, the Company may, upon shall (i) prepare and file from time to time with the occurrence of any event or the existence of any state of facts that, in the judgment of the Company’s legal counsel, renders advisable the suspension of the disposition of Registrable Securities covered by SEC a post-effective amendment to the Registration Statement or the use of the Prospectus due to pending corporate developments, public filings with the SEC or other similar events, suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus for a period as short as reasonably practical in the circumstances and, in any event, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) supplement to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt of such Suspension Event Notice, will discontinue (and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the related Prospectus or a supplement or amendment to any supplement thereto document incorporated therein by reference or file any other required document so that
(any such suspension pursuant to this Section 2.2(bi) herein when the amendment has become effective), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trust.
(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 the 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; or (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 Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) of any event or circumstance that 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, 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, during ; or (v) the Company determines in good faith that offers and sales pursuant to the Registration PeriodStatement 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 certificate in writing to the Manager each Holder (the “"Suspension Notice”") to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Managerand, upon receipt of such Suspension Notice, such Holder will refrain (and cause the Trust to refrain) from selling or otherwise disposing of Registrable any Securities covered by pursuant to the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “"Suspension”") until such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company with the SEC are distributed to the Manager Company, or until the Manager it is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable current Prospectus may be resumedused, 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, the Company will use its commercially reasonable best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably possible practicable after the delivery of a Suspension Notice to each Holder. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to such Holder, such Holder shall be entitled to specific performance in the Manager. Any Suspension and Suspension Notice described in event that the Company fails to comply with the provisions of this Section 2.2(c7.4(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.4, no Holder shall be held 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 confidence 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 not disclosed by the Manager, except as required by law after reasonable prior notice result in liability to the Company.
(d) In order to enforce the provisions set forth in Sections 2.2(b) and (c) above, the Company may impose stop transfer instructions with respect to the sale of Registrable Securities by the Trust until the end of the applicable suspension period.
(e) If so directed by the CompanyProvided that a Suspension is not then in effect, the Manager shall deliver to the Company all physical copies of the Prospectus and any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice or Suspension Notice.
(f) The Manager each Holder may sell the Registrable Securities under the Registration Statement Statement, provided that neither an Event Suspension nor a Suspension is then in effect, the Manager sells in accordance with the plan of distribution in the Prospectus, and the Manager it arranges for delivery of a current Prospectus (as supplemented) to the transferee of such 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 transferee receiving other parties requiring such Registrable Prospectuses.
(f) Each Holder acknowledges and agrees that the Securities in compliance with sold pursuant to the Prospectus delivery requirements Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities Actis accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) the Securities have been sold in accordance with such Registration Statement and (ii) the requirement of delivering a current Prospectus has been satisfied.
(g) In the event of a sale of Securities by any Holder pursuant to the Registration Statement, such Holder shall deliver to the Company's transfer agent an appropriate notification of the sale, so that the Securities may be properly transferred.
Appears in 1 contract
Transfer of Securities; Suspension. (a) The Manager VPVP agrees that it will shall not offer to sell or make effect any sale, assignmentoffer to sell, pledgesolicitation of offers to buy, hypothecation disposition of, loan, pledge or other transfer 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 value of which is derived from Parent securities that would constitute a sale within the meaning of the Securities Act Act, except pursuant to (i) as contemplated in the Registration Statement, Statement referred to in Section 6.1 hereof or in accordance with the Act (ii) Rule 144 or including any successor rule thereto or (iii) pursuant to an applicable exemption from the registration under applicable federal and state securities laws requirements set forth therein), and that it will shall promptly notify the Company Parent of any changes in the information set forth in the Registration Statement regarding the Trust, Manager VPVP or the intended its plan of distribution distribution. VPVP further agrees that it shall not effect a Disposition of any Securities during the fifteen- (15)-trading-day period prior to and ending on the date of the Registrable Securities to execution of the extent required by applicable securities lawsdefinitive agreements executed in connection with the Equity Investment.
(b) In addition to any suspension rights under paragraph (cExcept in the event that Section 6.3(c) belowhereof applies, Parent shall, at all times during the Company may, upon the occurrence of any event Registration Period or the existence of any state of facts thatShare Registration Period, in as applicable, promptly (i) prepare and file from time to time with the judgment of the Company’s legal counsel, renders advisable the suspension of the disposition of Registrable Securities covered by SEC a post-effective amendment to the Registration Statement or a supplement to the use 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 Shares being sold thereunder, such Prospectus due will not contain an untrue statement of a material fact or omit to pending corporate developmentsstate a material fact necessary to make the statements therein, public filings 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 the SEC its obligations in Section 6.3(b)(i) hereof (or other similar eventsthat, suspend the disposition of Registrable Securities covered by if Parent has filed a post-effective amendment to the Registration Statement or that has not yet been declared effective, Parent shall notify VPVP to that effect, shall use of its commercially reasonable efforts to secure the Prospectus for a period as short as reasonably practical in the circumstances and, in any event, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt effectiveness of such Suspension Event Notice, will discontinue (post-effective amendment as promptly as possible and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the Prospectus or any supplement thereto (any such suspension shall promptly notify VPVP pursuant to this Section 2.2(b6.3(b)(iii) hereof when the amendment has become effective), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trust.
(c) In Subject to Section 6.3(d) hereof, in the event of: 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 the 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 Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose or (iiiiv) any event or circumstance 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, 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 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, during the Registration Period, then the Company Parent shall deliver a certificate notice in writing to the Manager VPVP (the “Suspension Notice”) to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Managerand, upon receipt of such Suspension Notice, will VPVP shall refrain (and cause the Trust to refrain) from selling or otherwise disposing of any Registrable Securities covered by Shares pursuant to the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “Suspension”) until VPVP’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company with the SEC are distributed to the Manager Parent, or until the Manager it is advised in writing by the Company Parent that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable current Prospectus may be resumedused. In the event of any Suspension, the Company will Parent shall use its commercially reasonable efforts efforts, consistent with the best interests of Parent and its stockholders, to cause the use of the Prospectus so suspended to be resumed as soon as reasonably possible practicable after the delivery of a Suspension Notice to the Manager. Any Suspension and Suspension Notice described in this Section 2.2(c) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the CompanyVPVP.
(d) In order the event VPVP is prohibited from selling Warrant Shares under the Registration Statement as a result of Suspensions on more than two (2) occasions of more than forty-five (45) days each in any twelve- (12)-month period, Parent shall pay to enforce the provisions set forth VPVP liquidated damages in Sections 2.2(b) and (c) above, the Company may impose stop transfer instructions with respect an amount equal to the sale of Registrable Securities by the Trust until the end 1.0% of the applicable suspension total aggregate purchase price of the Registrable Shares registered on such Registration Statement then held by VPVP if, as 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 thirty- (30)-day period thereafter during which such prohibition continues; provided, however, that in no event shall Parent be obligated to pay more than 1.0% of the total aggregate purchase price of the Warrant Shares registered on such Registration Statement then held by VPVP in any thirty- (30)-day period.
(e) If so directed In the event VPVP is prohibited from selling Merger Shares or Conversion Shares under the Registration Statement as a result of Suspensions for more than sixty (60) days in any twelve- (12)-month period, then (i) Parent shall pay to VPVP liquidated damages in an amount equal to one percent (1.0%) of the total aggregate purchase price of the Merger Shares or Conversion Shares registered on such Registration Statement then held by VPVP if, as a result of such Suspensions, VPVP is prohibited from selling Merger Shares or Conversion Shares under such Registration Statement for a period that exceeds sixty (60) days in the Companyaggregate in any twelve- (12)-month period and (ii) after the date, the Manager shall deliver if any, on which Parent becomes obligated to pay VPVP liquidated damages pursuant to the Company all physical copies preceding clause (i), Parent shall pay to VPVP additional liquidated damages in an amount equal to one percent (1.0%) of the Prospectus and total aggregate purchase price of the Merger Shares or Conversion Shares registered on such Registration Statement then held by VPVP for each additional thirty (30) days thereafter during which as a result of a suspension VPVP is prohibited from selling shares under such Registration Statement; provided, however, that in no event shall Parent be obligated to pay more than one percent (1.0%) of the total aggregate purchase price of the Merger Shares or Conversion Shares registered on such Registration Statement then held by VPVP in any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice or Suspension Noticethirty- (30)-day period.
(f) The Manager may sell In the event of a sale of Registrable Securities Shares by VPVP under the Registration Statement provided that neither an Event Suspension nor Statement, VPVP must also deliver to Parent’s transfer agent, with a Suspension is then in effectcopy to Parent, the Manager sells in accordance with the plan a Certificate of distribution Subsequent Sale substantially in the Prospectusform attached hereto as Exhibit C, and so that the Manager arranges for delivery of a current Prospectus (as supplemented) to any transferee receiving such Registrable Securities in compliance with the Prospectus delivery requirements of the Securities ActShares may be properly transferred.
Appears in 1 contract
Transfer of Securities; Suspension. (a) The Manager Each Purchaser agrees that it will in case of any disposition of its Securities not offer to sell or make any sale, assignment, pledge, hypothecation or other transfer with respect made pursuant to the Registrable Securities that would constitute a sale within the meaning of the Securities Act except pursuant Registration Statement to (i) a third party who agrees to be bound by the Registration Statement, provisions of this Section 7 and makes the representations to the Company contained in Section 4 herein or (ii) Rule 144 its partners as part of a distribution of all or any successor rule thereto or part of the Securities (iii) pursuant to an applicable exemption from registration under applicable federal in each case the "Transferee", and state securities laws and that it together with the Purchasers, the "Holders"), such Purchaser will promptly notify the Company of any changes in the information set forth in the Registration Statement regarding the TrustHolders or their plans of distribution. The Company agrees, Manager in case of such sale, transfer or the intended plan of distribution of the Registrable Securities (to the extent required by applicable securities lawsmade in accordance with Section 7.1), to promptly file one or more post-effective amendments to the Registration Statement or a supplement to the related Prospectus, naming each Transferee as a Selling Shareholder in accordance with the provisions of the Securities Act.
(b) In addition to any suspension rights under Except in the event that paragraph (c) belowbelow applies, the Company may, upon shall (i) prepare and file from time to time with the occurrence of any event or the existence of any state of facts that, in the judgment of the Company’s legal counsel, renders advisable the suspension of the disposition of Registrable Securities covered by SEC a post-effective amendment to the Registration Statement or the use of the Prospectus due to pending corporate developments, public filings with the SEC or other similar events, suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus for a period as short as reasonably practical in the circumstances and, in any event, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) supplement to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt of such Suspension Event Notice, will discontinue (and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the related Prospectus or any a supplement thereto or amendment
(any such suspension pursuant to this Section 2.2(bi) herein when the amendment has become effective), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trust.
(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 the 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; or (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 Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) of any event or circumstance that 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, 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, during ; or (v) the Company determines in good faith that offers and sales pursuant to the Registration PeriodStatement 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 certificate in writing to the Manager each Holder (the “"Suspension Notice”") to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Managerand, upon receipt of such Suspension Notice, such Holder will refrain (and cause the Trust to refrain) from selling or otherwise disposing of Registrable any Securities covered by pursuant to the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “"Suspension”") until such Holder's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company with the SEC are distributed to the Manager Company, or until the Manager it is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable current Prospectus may be resumedused, 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, the Company will use its commercially reasonable best efforts to cause the use of the Prospectus so suspended to be resumed as soon as reasonably possible practicable after the delivery of a Suspension Notice to each Holder. In addition to and without limiting any other remedies (including, without limitation, at law or at equity) available to such Holder, such Holder shall be entitled to specific performance in the Manager. Any Suspension and Suspension Notice described in event that the Company fails to comply with the provisions of this Section 2.2(c7.4(c).
(d) Notwithstanding the foregoing paragraphs of this Section 7.4, no Holder shall be held 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 confidence 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 not disclosed by the Manager, except as required by law after reasonable prior notice result in liability to the Company.
(d) In order to enforce the provisions set forth in Sections 2.2(b) and (c) above, the Company may impose stop transfer instructions with respect to the sale of Registrable Securities by the Trust until the end of the applicable suspension period.
(e) If so directed by the CompanyProvided that a Suspension is not then in effect, the Manager shall deliver to the Company all physical copies of the Prospectus and any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice or Suspension Notice.
(f) The Manager each Holder may sell the Registrable Securities under the Registration Statement Statement, provided that neither an Event Suspension nor a Suspension is then in effect, the Manager sells in accordance with the plan of distribution in the Prospectus, and the Manager it arranges for delivery of a current Prospectus (as supplemented) to the transferee of such 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 transferee receiving other parties requiring such Registrable Prospectuses.
(f) Each Holder acknowledges and agrees that the Securities in compliance with sold pursuant to the Prospectus delivery requirements Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the transfer agent evidencing such Securities Actis accompanied by a certificate reasonably satisfactory to the Company to the effect that (i) the Securities have been sold in accordance with such Registration Statement and (ii) the requirement of delivering a current Prospectus has been satisfied.
(g) In the event of a sale of Securities by any Holder pursuant to the Registration Statement, such Holder shall deliver to the Company's transfer agent an appropriate notification of the sale, so that the Securities may be properly transferred.
Appears in 1 contract
Transfer of Securities; Suspension. (a) The Manager VPVP agrees that it will shall not offer to sell or make effect any sale, assignmentoffer to sell, pledgesolicitation of offers to buy, hypothecation disposition of, loan, pledge or other transfer grant of any right with respect to the Securities (a "Disposition") or its right to purchase the Registrable Securities Shares that would constitute a sale within the meaning of the Securities Act Act, except pursuant to (i) as contemplated in the Registration StatementStatement referred to in Section 6.1 hereof or in accordance with the Act, (ii) Rule 144 or any successor rule thereto or (iii) pursuant to an applicable exemption from registration under applicable federal and state securities laws and that it will shall promptly notify the Company Parent of any changes in the information set forth in the Registration Statement regarding the Trust, Manager VPVP or the intended its plan of distribution distribution. VPVP further agrees that it shall not effect a Disposition of any Securities during the fifteen- (15)-trading-day period prior to and ending on the date of the Registrable Securities to execution of the extent required by applicable securities lawsdefinitive agreements executed in connection with the Equity Investment.
(b) In addition to any suspension rights under paragraph (c) below, the Company may, upon the occurrence of any event or the existence of any state of facts that, Except in the judgment of event that Section 6.3(c) hereof applies, Parent shall, at all times during the Company’s legal counselRegistration Period, renders advisable promptly (i) prepare and file from time to time with the suspension of the disposition of Registrable Securities covered by SEC a post-effective amendment to the Registration Statement or a supplement to the use 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 Shares being sold thereunder, such Prospectus due will not contain an untrue statement of a material fact or omit to pending corporate developmentsstate a material fact necessary to make the statements therein, public filings 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 the SEC its obligations in Section 6.3(b)(i) hereof (or other similar eventsthat, suspend the disposition of Registrable Securities covered by if Parent has filed a post-effective amendment to the Registration Statement or that has not yet been declared effective, Parent shall notify VPVP to that effect, shall use of its commercially reasonable efforts to secure the Prospectus for a period as short as reasonably practical in the circumstances and, in any event, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt effectiveness of such Suspension Event Notice, will discontinue (post-effective amendment as promptly as possible and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the Prospectus or any supplement thereto (any such suspension shall promptly notify VPVP pursuant to this Section 2.2(b6.3(b)(iii) hereof when the amendment has become effective), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trust.
(c) In Subject to Section 6.3(d) hereof, in the event of: 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 the 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 Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose or (iiiiv) any event or circumstance 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, 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 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, during the Registration Period, then the Company Parent shall deliver a certificate notice in writing to the Manager VPVP (the “"Suspension Notice”") to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Managerand, upon receipt of such Suspension Notice, will VPVP shall refrain (and cause the Trust to refrain) from selling or otherwise disposing of any Registrable Securities covered by Shares pursuant to the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “"Suspension”") until VPVP's receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company with the SEC are distributed to the Manager Parent, or until the Manager it is advised in writing by the Company Parent that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable current Prospectus may be resumedused. In the event of any Suspension, the Company will Parent shall use its commercially reasonable efforts efforts, consistent with the best interests of Parent and its stockholders, to cause the use of the Prospectus so suspended to be resumed as soon as reasonably possible practicable after the delivery of a Suspension Notice to the Manager. Any Suspension and Suspension Notice described in this Section 2.2(c) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the CompanyVPVP.
(d) In order the event VPVP is prohibited from selling Registrable Shares under the Registration Statement as a result of Suspensions on more than two (2) occasions of more than forty-five (45) days each in any twelve- (12)-month period, Parent shall pay to enforce the provisions set forth VPVP liquidated damages in Sections 2.2(b) and (c) above, the Company may impose stop transfer instructions with respect an amount equal to the sale of Registrable Securities by the Trust until the end 1.0% of the applicable suspension total aggregate purchase price of the Registrable Shares registered on such Registration Statement then held by VPVP if, as a result of such Suspensions, VPVP is prohibited from selling Registrable 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 thirty- (30)-day period thereafter during which such prohibition continues; provided, however, that in no event shall Parent be obligated to pay more than 1.0% of the total aggregate purchase price of the Registrable Shares registered on such Registration Statement then held by VPVP in any thirty- (30)-day period.
(e) If so directed In the event of a sale of Registrable Shares by the Company, the Manager shall deliver to the Company all physical copies of the Prospectus and any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice or Suspension Notice.
(f) The Manager may sell the Registrable Securities VPVP under the Registration Statement provided that neither an Event Suspension nor Statement, VPVP must also deliver to Parent's transfer agent, with a Suspension is then in effectcopy to Parent, the Manager sells in accordance with the plan a Certificate of distribution Subsequent Sale substantially in the Prospectusform attached hereto as Exhibit C, and so that the Manager arranges for delivery of a current Prospectus (as supplemented) to any transferee receiving such Registrable Securities in compliance with the Prospectus delivery requirements of the Securities ActShares may be properly transferred.
Appears in 1 contract
Transfer of Securities; Suspension. (a) The Manager Each Purchaser agrees that it will not offer effect any Disposition of the Registrable Securities or its right to sell or make any sale, assignment, pledge, hypothecation or other transfer with respect to purchase the Registrable Securities that would constitute a sale within the meaning of the Securities Act or any applicable state securities laws, except pursuant to (i) as contemplated in the Registration StatementStatement referred to in Section 6.1 or in accordance with the Securities Act, (ii) Rule 144 or any successor rule thereto or (iii) pursuant to an applicable exemption from registration under applicable federal and state securities laws and that 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 regarding the Trust, Manager or the intended Registration Questionnaire regarding such Purchaser or its plan of distribution of or other information as the Registrable Securities Company may reasonably request in connection with any registration referred to in Article VI. The Company shall not be required to include any Shares or Warrant Shares held by a Purchaser in the extent required by applicable securities lawsRegistration Statement if such Purchaser fails to complete or update the Registration Questionnaire or provide the information requested in the Registration Questionnaire in accordance with this Section 6.3.
(b) In addition to any suspension rights under Except in the event that paragraph (c) belowbelow applies, the Company mayshall use its reasonable best efforts to, upon the occurrence of any event or the existence of any state of facts that, in the judgment of the Company’s legal counsel, renders advisable the suspension of the disposition of Registrable Securities covered by at all times during the Registration Statement or the use of the Prospectus due Period, promptly prepare and file from time to pending corporate developments, public filings 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 similar eventsrequired 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, suspend and so that, as thereafter delivered to purchasers of the disposition of Registrable Securities covered by 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 Registration Statement or use statements therein, in light of the Prospectus for a period as short as reasonably practical in the circumstances and, in any eventunder which they were made, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt of such Suspension Event Notice, will discontinue (and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(b), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trustmisleading.
(c) In the event of: 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 the 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 (iiiv) any event or circumstance that 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, and 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 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, during the Registration Period, then the Company shall deliver a certificate notice in writing to the Manager Purchasers (the a “Suspension Notice”) to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Managerand, upon receipt of such Suspension Notice, the Purchasers will refrain (and cause the Trust to refrain) from selling or otherwise disposing of any Registrable Securities covered by pursuant to the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “Suspension”) until the Purchasers’ receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company with the SEC are distributed to the Manager Company, or until the Manager it is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable current Prospectus may be resumedused. In the event of any SuspensionSuspension pursuant to clause (i), (ii) or (iii) above, the Company will use its commercially reasonable efforts 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 possible practicable after the delivery of a Suspension Notice to the ManagerPurchasers. Any Suspension and The Company shall not disclose in any Suspension Notice described in this Section 2.2(c) any material non-public information giving rise to such Suspension. No Suspension shall be held in confidence and exceed 30 consecutive days and, during any 365-day period, Suspensions shall not disclosed by the Manager, except as required by law after reasonable prior notice to the Companyexceed an aggregate of 90 days.
(d) In order If (i) any Purchaser is required under applicable securities law to enforce be described in the provisions set forth in Sections 2.2(b) Registration Statement as an underwriter and (cii) abovethe Company is obtaining in connection with the Registration Statement (A) any letter from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering or (B) any opinion of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, the Company may impose stop transfer instructions with respect shall cause such documentation to the sale of Registrable Securities by the Trust until the end of the applicable suspension periodalso be addressed and issued to such Purchaser.
(e) If Upon the written request of any Purchaser in connection with any Purchaser’s due diligence requirements, if any, the Company shall make available for inspection by (i) any Purchaser and (ii) one firm of accountants or other agents retained by the Purchasers (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 a Purchaser) 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 directed 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. Each Purchaser 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, the Manager shall deliver at its expense, to the Company all physical copies of the Prospectus and any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice undertake appropriate action to prevent disclosure of, or Suspension Notice.
(f) The Manager may sell the Registrable Securities under the Registration Statement provided that neither an Event Suspension nor to obtain a Suspension is then in effectprotective order for, the Manager sells in accordance with the plan of distribution in the Prospectus, and the Manager arranges for delivery of a current Prospectus (as supplemented) to any transferee receiving such Registrable Securities in compliance with the Prospectus delivery requirements of the Securities ActRecords deemed confidential.
Appears in 1 contract
Transfer of Securities; Suspension. (a) The Manager VPVP agrees that it will shall not offer to sell or make effect any sale, assignmentoffer to sell, pledgesolicitation of offers to buy, hypothecation disposition of, loan, pledge or other transfer grant of any right with respect to the Securities (a “Disposition”) or its right to purchase the Registrable Securities Shares that would constitute a sale within the meaning of the Securities Act Act, except pursuant to (i) as contemplated in the Registration StatementStatement referred to in Section 6.1 hereof or in accordance with the Act, (ii) Rule 144 or any successor rule thereto or (iii) pursuant to an applicable exemption from registration under applicable federal and state securities laws and that it will shall promptly notify the Company Parent of any changes in the information set forth in the Registration Statement regarding VPVP or its plan of distribution. VPVP further agrees that it shall not effect a Disposition of any Securities during the Trust, Manager fifteen- (15)-trading-day period prior to and ending on the date of the execution of the definitive agreements executed in connection with the Equity Investment or the intended plan of distribution of the Registrable Securities to the extent required by applicable securities lawsSubsequent Financing.
(b) In addition to any suspension rights under paragraph (c) below, the Company may, upon the occurrence of any event or the existence of any state of facts that, Except in the judgment of event that paragraph 6.3(c) hereof applies, Parent shall, at all times during the Company’s legal counselRegistration Period, renders advisable promptly (i) prepare and file from time to time with the suspension of the disposition of Registrable Securities covered by SEC a post-effective amendment to the Registration Statement or a supplement to the use 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 Shares being sold thereunder, such Prospectus due will not contain an untrue statement of a material fact or omit to pending corporate developmentsstate a material fact necessary to make the statements therein, public filings 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 the SEC its obligations in Section 6.3(b)(i) hereof (or other similar eventsthat, suspend the disposition of Registrable Securities covered by if Parent has filed a post-effective amendment to the Registration Statement or that has not yet been declared effective, Parent shall notify VPVP to that effect, shall use of its commercially reasonable efforts to secure the Prospectus for a period as short as reasonably practical in the circumstances and, in any event, not more than ninety (90) consecutive days on written notice (each such notice, a “Suspension Event Notice”) to the Manager (which Suspension Event Notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Manager, upon receipt effectiveness of such Suspension Event Notice, will discontinue (post-effective amendment as promptly as possible and cause the Trust to discontinue) from selling or otherwise disposing of Registrable Securities covered by the Registration Statement or using the Prospectus or any supplement thereto (any such suspension shall promptly notify VPVP pursuant to this Section 2.2(b6.3(b)(iii) hereof when the amendment has become effective), an “Event Suspension”) until copies of a supplemented or amended Prospectus filed by the Company with the SEC are distributed to the Manager or until the Manager is advised in writing by the Company that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable Prospectus may be resumed; provided, however, that such right to suspend the disposition of Registrable Securities covered by the Registration Statement or use of the Prospectus shall not be exercised by the Company for more than one hundred and twenty (120) days in any twelve-month period. Any Event Suspension and Suspension Event Notice described in this Section 2.2(b) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the Company. For the avoidance of doubt, the Company confirms that it has no intention to exercise its rights under this Section 2.2(b) to interfere in a commercially unreasonable manner with the ability of the Manager to dispose of Registrable Securities consistent with the investment guidelines applicable to the Separate Account of the Trust.
(c) In Subject to paragraph 6.3(d) hereof, in the event of: 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 the 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 Parent of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose or (iiiiv) any event or circumstance 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, 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 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, during the Registration Period, then the Company Parent shall deliver a certificate notice in writing to the Manager VPVP (the “Suspension Notice”) to the effect of the foregoing (which notice will not disclose the content of any material non-public information and will indicate the date of the beginning and end of the intended suspension, if known), in which case the Managerand, upon receipt of such Suspension Notice, will VPVP shall refrain (and cause the Trust to refrain) from selling or otherwise disposing of any Registrable Securities covered by Shares pursuant to the Registration Statement or using the Prospectus or any supplement thereto (any such suspension pursuant to this Section 2.2(c), a “Suspension”) until VPVP’s receipt of copies of a supplemented or amended Prospectus prepared and filed by the Company with the SEC are distributed to the Manager Parent, or until the Manager it is advised in writing by the Company Parent that the disposition of Registrable Securities covered by the Registration Statement or the use of the applicable current Prospectus may be resumedused. In the event of any Suspension, the Company will Parent shall use its commercially reasonable efforts efforts, consistent with the best interests of Parent and its stockholders, to cause the use of the Prospectus so suspended to be resumed as soon as reasonably possible practicable after the delivery of a Suspension Notice to the Manager. Any Suspension and Suspension Notice described in this Section 2.2(c) shall be held in confidence and not disclosed by the Manager, except as required by law after reasonable prior notice to the CompanyVPVP.
(d) In order the event VPVP is prohibited from selling Registrable Shares under the Registration Statement as a result of Suspensions on more than two (2) occasions of more than forty-five (45) days each in any twelve- (12)-month period, Parent shall pay to enforce the provisions set forth VPVP liquidated damages in Sections 2.2(b) and (c) above, the Company may impose stop transfer instructions with respect an amount equal to the sale of Registrable Securities by the Trust until the end 1.0% of the applicable suspension total aggregate purchase price of the Registrable Shares registered on such Registration Statement then held by VPVP if, as a result of such Suspensions, VPVP is prohibited from selling Registrable 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 thirty- (30)-day period thereafter during which such prohibition continues; provided, however, that in no event shall Parent be obligated to pay more than 1.0% of the total aggregate purchase price of the Registrable Shares registered on such Registration Statement then held by VPVP in any thirty- (30)-day period.
(e) If so directed In the event of a sale of Registrable Shares by the Company, the Manager shall deliver to the Company all physical copies of the Prospectus and any supplements thereto in its possession at the time of receipt by the Manager of any Suspension Event Notice or Suspension Notice.
(f) The Manager may sell the Registrable Securities VPVP under the Registration Statement provided that neither an Event Suspension nor Statement, VPVP must also deliver to Parent’s transfer agent, with a Suspension is then in effectcopy to Parent, the Manager sells in accordance with the plan a Certificate of distribution Subsequent Sale substantially in the Prospectusform attached hereto as Exhibit C, and so that the Manager arranges for delivery of a current Prospectus (as supplemented) to any transferee receiving such Registrable Securities in compliance with the Prospectus delivery requirements of the Securities ActShares may be properly transferred.
Appears in 1 contract
