Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 2 hereof, the Company shall: (a) prepare and file with the SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith; (b) subject to Section 3(i) hereof; (i) prepare and file with the SEC such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement; (c) furnish Worldspan after it has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto; (d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction; (e) notify Worldspan promptly and, if requested by Worldspan, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible; (g) furnish to Worldspan after delivery of a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested); (h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof; (i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement; (k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company; (l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed; (m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and (n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), Worldspan shall not
Appears in 1 contract
Shelf Registration Procedures. 3.1 In connection Each holder of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with the obligations this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the Shelf intended distribution of Registrable Securities by such holder required to amend or supplement the Registration Statement contemplated with respect to such intended distribution of Registrable Securities by Section 2 hereofsuch holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such date, the Company shallshall either:
(a) prepare and file with the SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(b) subject to Section 3(i) hereof; (iA) prepare and file with the SEC such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;
(c) furnish Worldspan after it has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf related Prospectus or a supplement or amendment to any document incorporated therein by reference or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf any other required document, so that such Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall will not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan promptly and, if requested by Worldspan, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or (B) and so that, as thereafter delivered to purchasers of the Shelf Registrable Securities being sold thereunder, such Prospectus as then amended or supplemented contains will not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
; (fB) make every reasonable effort to obtain the withdrawal provide each Initiating Holder a copy of any order suspending documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the effectiveness of Company has complied with its obligations in Section 2(d)(i)(A) and that the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to Worldspan after delivery of a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and related Prospectus may be used for the purpose of selling all or any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that (or that, if the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of has filed a post-effective amendment to the Shelf Registration Statementwhich has not yet been declared effective, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure the effectiveness of such post-effective amendment and any counsel, accountants or other representatives retained by Worldspan will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect pursuant to the Shelf Registration Statement and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2 hereof 2(d)(i)(C), that the Registration Statement and this Section 3, Worldspan covenants and Prospectus may be used for such purpose; each Initiating Holder agrees that (i) it will not offer or sell any Registrable Securities under the Shelf pursuant to such Registration Statement until it has provided or Prospectus after such Selling Period without giving a Shelf Registration Notice new notice of intention to sell pursuant to Section 3(b2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder's Selling Period will not commence until such Initiating Holder's receipt of copies of the supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the Shelf use of the Prospectus as then amended may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or supplemented as contemplated similar material event or (y) a determination by Section 3(c) and notice from the Company that that, in the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect judgment of the occurrence Company, public disclosure of an such material corporate development or similar material event contemplated by clause (v) of Section 3(e)), Worldspan shall notwould not be prejudicial to the Company.
Appears in 1 contract
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by shelf registration statement pursuant to Section 2 5.1(a) hereof and, to the extent applicable, Section 5.1(b) hereof, and subject to Section 5.2 hereof, the Company shall:
(ai) prepare and file with the SECCommission a shelf registration statement on the appropriate form under the Securities Act, within (A) which form shall be selected by the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) Company and shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan the selling holders thereof (provided that the Company shall not be required to use any form other than Form S-1, S-2, S-3, SB-1 or SB-2 as applicable or any successor form and ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ to file more than one shelf registration statement with the Commission) and (iiB) which shelf registration statement shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC Commission to be filed therewithso included or incorporated by reference, further provided that subject to the registration statement and prospectus being in compliance with the requirements of the Securities Act and the Exchange Act (including all rules and regulations of the Commission thereunder), the Company has the sole discretion to determine the form, substance and presentation of any financial or other information included in any registration statement or prospectus, and whether such information should be included in such registration statement or prospectus; and (ii) use its best efforts to cause such shelf registration statement to become effective and remain effective in accordance with Section 5.1 hereof;
(b) subject to Section 3(i) hereof; (i) prepare and file with the SEC Commission such amendments and post-effective amendments to such Shelf Registration Statement the shelf registration statement as may be necessary to keep such Shelf Registration Statement shelf registration statement effective for the applicable period; (ii) and cause the Shelf Prospectus each prospectus to be amended or supplemented by any required prospectus supplement, and as required and so supplemented to be filed as required by pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;
(c) in the event that any federal law or regulation binding on the Company and adopted after the date hereof so requires (and would also so require if the Registrable Securities were being offered in a primary offering by the Company rather than by the holders), use its best efforts to cause such Registrable Securities to be registered with or approved by such other federal governmental agencies or authorities in the United States, if any, as may be required by virtue of the business and operations of the Company to enable the selling holders to consummate the disposition of such Registrable Securities; 10
(d) furnish Worldspan after it has delivered a Shelf Registration Notice to each holder of Registrable Securities and to each managing underwriter of an underwritten offering of Registrable Securities pursuant to Section 4(1) of the CompanySecurities Act, if any, without charge, as many copies of each Shelf Prospectus prospectus, including each preliminary prospectus, and any amendment or supplement thereto as such holder or underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(de) use its commercially reasonable best efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or "blue sky sky" laws of such jurisdictions in as any holder of Registrable Securities of such class covered by the United States and its territories and possessions as Worldspan shall shelf registration statement shall, on 20 days prior written notice, reasonably request in writing, keep each . Such notice to be sent at any time prior to the applicable registration statement being declared effective by the Commission. The Company shall maintain such registration or qualification effective in effect during the applicable period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorterprovided in Section 5.1(a) hereof; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation generally to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d5(e), ; (ii) subject itself to taxation in any such jurisdiction, or ; (iii) file a make any change to its Articles or Incorporation or Bylaws; or (iv) become subject to general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(ef) notify Worldspan each holder of Registrable Securities as promptly and, as practicable after becoming aware thereof and (if requested by Worldspan, any such holder) confirm such notice in writing, writing (i) when the Shelf Registration Statement shelf registration statement has become effective and when any post-effective amendments and supplements thereto have become effective, ; (ii) when of any amendment request by the Commission or supplement any state securities authority for amendments and supplements to the Shelf Prospectus shelf registration statement and any prospectus or for additional information relating to the Registrable Securities or the shelf registration or qualification thereof after the registration statement has been filed with the SEC, become effective; (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof shelf registration statement or the initiation of any proceedings for that purpose, ; (iv) if the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the Registrable Securities cease to be true and correct in any material respect prior to the closing date specified in such agreement (provided such notice shall be given only to holders which are parties to the agreements pursuant to which such representations and warranties are made), or if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, ; and (v) of the happening of any event during the period (other than any suspension period referred to in Section 5.2(a)) during which the Shelf Registration Statement shelf registration statement is required hereunder to be effective as a result of which the shelf registration statement or any prospectus would contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading; 11
(Ag) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the shelf registration statement or the qualification of the Registrable Securities for sale in any jurisdiction as promptly as practicable;
(h) furnish to each holder of Registrable Securities, without charge, at least one conformed copy of the shelf registration statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested in writing);
(i) cooperate with the holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to the shelf registration statement and not bearing any restrictive legends; and enable such Shelf Registration Statement contains Registrable Securities to be in such denominations and registered in such names as the selling holders may reasonably request (in each case, provided such certificates are requested in writing at least three business days prior to any delivery thereof);
(j) upon the occurrence of any event contemplated by Section 5.3(f)(v) hereof, use its best efforts as promptly as practicable to prepare and file with the Commission a supplement or post-effective amendment to the shelf registration statement or the related prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(fk) make every reasonable effort otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness comply with all applicable rules and regulations of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to Worldspan after delivery of a Shelf Registration Notice to the CompanyCommission, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least a period of 12 months, beginning within three months after the effective date of the shelf registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder under the Securities Act;
(l) use its best efforts to (i) cause all Registrable Securities to be listed or quoted on any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to securities exchange or quotation system on which the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that outstanding Common Stock is then listed or quoted; and
(im) it will not offer or sell any obtain a CUSIP number for all Registrable Securities under not later than the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies effective date of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) shelf registration statement. Each holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.3(f)(v) hereof, such holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such 12 Registrable Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e5.3(j) hereof, or until it is advised in writing by the Company that the use of such prospectus may be resumed and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in respect such holder's possession, of the occurrence prospectus covering such Registrable Securities current at the time of an event receipt of such notice; provided, however, that the Company shall use its best efforts to promptly prepare and provide to the holders a supplemented or amended prospectus contemplated by clause (vsuch Section 5.3(j) hereof. In the event the Company shall give any such notice, the period during which such Registration Statement shall be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3(e)), Worldspan 5.3(f)(v) hereof to including the date when each holder of Registrable Securities covered by such Registration Statement shall nothave received the copies of the supplemented or amended prospectus contemplated by Section 5.3(j) hereof.
Appears in 1 contract
Sources: Class a Warrant Agreement (Soy Environmental Products Inc)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by shelf registration statement pursuant to Section 2 5.1(a) hereof and, to the extent applicable, Section 5.1(b) hereof, and subject to Section 5.2 hereof, the Company shall:: 9
(ai) prepare and file with the SECCommission a shelf registration statement on the appropriate form under the Securities Act, within (A) which form shall be selected by the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) Company and shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan the selling holders thereof (provided that the Company shall not be required to use any form other than Form S-1, S-2, S-3, SB-1 or SB-2 as applicable or any successor form and shall not be required to file more than one shelf registration statement with the Commission) and (iiB) which shelf registration statement shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC Commission to be filed therewithso included or incorporated by reference, further provided that subject to the registration statement and prospectus being in compliance with the requirements of the Securities Act and the Exchange Act (including all rules and regulations of the Commission thereunder), the Company has the sole discretion to determine the form, substance and presentation of any financial or other information included in any registration statement or prospectus, and whether such information should be included in such registration statement or prospectus; and (ii) use its best efforts to cause such shelf registration statement to become effective and remain effective in accordance with Section 5.1 hereof;
(b) subject to Section 3(i) hereof; (i) prepare and file with the SEC Commission such amendments and post-effective amendments to such Shelf Registration Statement the shelf registration statement as may be necessary to keep such Shelf Registration Statement shelf registration statement effective for the applicable period; (ii) and cause the Shelf Prospectus each prospectus to be amended or supplemented by any required prospectus supplement, and as required and so supplemented to be filed as required by pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;
(c) in the event that any federal law or regulation binding on the Company and adopted after the date hereof so requires (and would also so require if the Registrable Securities were being offered in a primary offering by the Company rather than by the holders), use its best efforts to cause such Registrable Securities to be registered with or approved by such other federal governmental agencies or authorities in the United States, if any, as may be required by virtue of the business and operations of the Company to enable the selling holders to consummate the disposition of such Registrable Securities;
(d) furnish Worldspan after it has delivered a Shelf Registration Notice to each holder of Registrable Securities and to each managing underwriter of an underwritten offering of Registrable Securities pursuant to Section 4(1) of the CompanySecurities Act, if any, without charge, as many copies of each Shelf Prospectus prospectus, including each preliminary prospectus, and any amendment or supplement thereto as such holder or underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(de) use its commercially reasonable best efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or "blue sky sky" laws of such jurisdictions in as any holder of Registrable Securities of such class covered by the United States and its territories and possessions as Worldspan shall shelf registration statement shall, on 20 days prior written notice, reasonably request in writing, keep each . Such notice to be sent at any time prior to the applicable registration statement being declared effective by the Commission. The Company shall maintain 10 such registration or qualification effective in effect during the applicable period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorterprovided in Section 5.1(a) hereof; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation generally to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d5(e), ; (ii) subject itself to taxation in any such jurisdiction, or ; (iii) file a make any change to its Articles or Incorporation or Bylaws; or (iv) become subject to general consent to service of process in any such jurisdictionjurisdiction where it is not then so subject;
(ef) notify Worldspan each holder of Registrable Securities as promptly and, as practicable after becoming aware thereof and (if requested by Worldspan, any such holder) confirm such notice in writing, writing (i) when the Shelf Registration Statement shelf registration statement has become effective and when any post-effective amendments and supplements thereto have become effective, ; (ii) when of any amendment request by the Commission or supplement any state securities authority for amendments and supplements to the Shelf Prospectus shelf registration statement and any prospectus or for additional information relating to the Registrable Securities or the shelf registration or qualification thereof after the registration statement has been filed with the SEC, become effective; (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof shelf registration statement or the initiation of any proceedings for that purpose, ; (iv) if the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the Registrable Securities cease to be true and correct in any material respect prior to the closing date specified in such agreement (provided such notice shall be given only to holders which are parties to the agreements pursuant to which such representations and warranties are made), or if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, ; and (v) of the happening of any event during the period (other than any suspension period referred to in Section 5.2(a)) during which the Shelf Registration Statement shelf registration statement is required hereunder to be effective as a result of which the shelf registration statement or any prospectus would contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading;
(Ag) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of the shelf registration statement or the qualification of the Registrable Securities for sale in any jurisdiction as promptly as practicable;
(h) furnish to each holder of Registrable Securities, without charge, at least one conformed copy of the shelf registration statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested in writing);
(i) cooperate with the holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to the shelf registration statement and not bearing any restrictive legends; and enable such Shelf Registration Statement contains Registrable Securities to be in such denominations and registered in such names as the selling holders may 11 reasonably request (in each case, provided such certificates are requested in writing at least three business days prior to any delivery thereof);
(j) upon the occurrence of any event contemplated by Section 5.3(f)(v) hereof, use its best efforts as promptly as practicable to prepare and file with the Commission a supplement or post-effective amendment to the shelf registration statement or the related prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(fk) make every reasonable effort otherwise use its best efforts to obtain the withdrawal of any order suspending the effectiveness comply with all applicable rules and regulations of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to Worldspan after delivery of a Shelf Registration Notice to the CompanyCommission, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least a period of 12 months, beginning within three months after the effective date of the shelf registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder under the Securities Act;
(l) use its best efforts to (i) cause all Registrable Securities to be listed or quoted on any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to securities exchange or quotation system on which the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that outstanding Common Stock is then listed or quoted; and
(im) it will not offer or sell any obtain a CUSIP number for all Registrable Securities under not later than the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies effective date of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) shelf registration statement. Each holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.3(f)(v) hereof, such holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e5.3(j) hereof, or until it is advised in writing by the Company that the use of such prospectus may be resumed and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in respect such holder's possession, of the occurrence prospectus covering such Registrable Securities current at the time of an event receipt of such notice; provided, however, that the Company shall use its best efforts to promptly prepare and provide to the holders a supplemented or amended prospectus contemplated by clause (vsuch Section 5.3(j) hereof. In the event the Company shall give any such notice, the period during which such Registration Statement shall be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3(e)), Worldspan 5.3(f)(v) hereof to including the date when each holder of Registrable Securities covered by such Registration Statement shall nothave received the copies of the supplemented or amended prospectus contemplated by Section 5.3(j) hereof. 12
Appears in 1 contract
Sources: Private Placement Memorandum (Soy Environmental Products Inc)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 2 3.1 hereof, the Company shall:
(a) prepare and file with the SECCommission, within the time period set forth in Section 2 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;
(b) subject to the last six sentences of this Section 3(i3.2(b) and Section 3.2(i) hereof; , (i) prepare and file with the SEC Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for throughout the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (iii) respond as promptly as practicable to any comments received from the SEC Commission with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b3.2(b), Section 3(d3.2(d) or Section 3(i3.2(i) with respect to the Shelf Registrable Securities (Ax) to the extent that (I) in the reasonable opinion of the Company is in possession of (A) securities laws applicable to such sale would require the Company to disclose material non-public information that it deems advisable not to disclose ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (ii) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); OR (iii) the Company is engaged contemplating an underwritten Public Offering of its securities and in active negotiations or planning for the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a merger or acquisition or disposition transaction "Financing Period"); and it the Company delivers written notice to Worldspan the Holders to the effect that Worldspan the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) 45 days from the date of such notice; providedPROVIDED, howeverHOWEVER, that Worldspan shall not be precluded from effecting sales pursuant to the Company may deliver only four such notices under this clause (ASection 3.2(b) for more than (90and Section 3.4(a) days during within any 360twelve-day month period, PROVIDED, FURTHER, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (By) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan any Holder that it such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; providedPROVIDED, howeverHOWEVER, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering . The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the WorldspanHolders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, and (D) if the Company haswill notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, within being otherwise disclosed to the last twelve public (12) month period preceding other than through the date actions of such requestany Holder), already effected two registrations on Form-3 for Worldspan pursuant or ceasing to this Section 3. Once Worldspan has delivered a Shelf Registration Notice be material to the Company, Worldspan and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion Holders of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statementend of the deferral period;
(c) promptly furnish Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; providedPROVIDED, howeverHOWEVER, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d3.2(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan the Holders promptly and, if requested by Worldspana Holder, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SECCommission, (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) promptly furnish to Worldspan the Holders after delivery of a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan the Holders to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such number numbers of shares as Worldspan the Holders may reasonably request at least two business days prior to any sale of Shelf Registrable Securities; provided that the Company receives timely notice thereof;
(i) subject to the last six sentences of Section 3.2(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3(e3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan the Holders after it a Holder has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan the Holders all financial and other records, pertinent material corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such material records, documents or information reasonably requested by Worldspanthe Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; providedPROVIDED, howeverHOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspanthe Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspanthe Holders, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any the Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;Holders; and
(l) use its reasonable best efforts to cause all Shelf Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than New York Stock Exchange from and after the effective date of a time the Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SECStatement is declared effective. The Company may require Worldspan the Holders to furnish to the Company in writing such information regarding the proposed distribution by Worldspan the Holders as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 3.1 hereof and this Section 33.2, Worldspan covenants the Holders covenant and agrees agree that (i) it they will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it a Holder has provided a Shelf Registration Notice pursuant to Section 3(b3.2(b) and has have received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c3.2(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e3.2(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e3.2(b) or Section 3.2(e) (in respect of the occurrence of an event contemplated therein), the Holders shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holders receive copies of the supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof and receive notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holders will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holders' possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) upon the expiration of 60 days after the first date on which offers or sales can be made pursuant to clause (i) above, the Holders will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until they have again complied with the provisions of clause (i) above; (iv) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will comply with the provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (v) each Holder and any of Section 3(e))such Holder's partners, Worldspan officers, directors or Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (vi) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will enter into such written agreements as the Company shall notreasonably request to ensure compliance with clauses (iv) and (v) above.
Appears in 1 contract
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 2 3.1 hereof, the Company shall:
(a) prepare and file with the SECCommission, within the time period set forth in Section 2 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;
(b) subject to the last six sentences of this Section 3(i3.2(b) and Section 3.2(i) hereof; , (i) prepare and file with the SEC Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for throughout the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (iii) respond as promptly as practicable to any comments received from the SEC Commission with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b3.2(b), Section 3(d3.2(d) or Section 3(i3.2(i) with respect to the Shelf Registrable Securities (Ax) to the extent that (i) in the reasonable opinion of the Company is in possession of (A) securities laws applicable to such sale would require the Company to disclose material non-public information that it deems advisable not to disclose ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (ii) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); or (iii) the Company is engaged contemplating an underwritten Public Offering of its securities and in active negotiations or planning for the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a merger or acquisition or disposition transaction "Financing Period"); and it the Company delivers written notice to Worldspan the Holders to the effect that Worldspan the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) 45 days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to the Company may deliver only four such notices under this clause (ASection 3.2(b) for more than (90and Section 3.4(a) days during within any 360twelve-day month period, provided, further, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (By) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan any Holder that it such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering . The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the WorldspanHolders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, and (D) if the Company haswill notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, within being otherwise disclosed to the last twelve public (12) month period preceding other than through the date actions of such requestany Holder), already effected two registrations on Form-3 for Worldspan pursuant or ceasing to this Section 3. Once Worldspan has delivered a Shelf Registration Notice be material to the Company, Worldspan and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion Holders of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statementend of the deferral period;
(c) promptly furnish Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d3.2(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan the Holders promptly and, if requested by Worldspana Holder, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SECCommission, (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) promptly furnish to Worldspan the Holders after delivery of a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan the Holders to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such number numbers of shares as Worldspan the Holders may reasonably request at least two business days prior to any sale of Shelf Registrable Securities; provided that the Company receives timely notice thereof;
(i) subject to the last six sentences of Section 3.2(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3(e3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan the Holders after it a Holder has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan the Holders all financial and other records, pertinent material corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such material records, documents or information reasonably requested by Worldspanthe Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspanthe Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspanthe Holders, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any the Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;Holders; and
(l) use its reasonable best efforts to cause all Shelf Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than New York Stock Exchange at the effective date of a time the Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SECStatement is declared effective. The Company may require Worldspan the Holders to furnish to the Company in writing such information regarding the proposed distribution by Worldspan the Holders as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 3.1 hereof and this Section 33.2, Worldspan covenants the Holders covenant and agrees agree that (i) it they will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it a Holder has provided a Shelf Registration Notice pursuant to Section 3(b3.2(b) and has have received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c3.2(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e3.2(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e3.2(b) or Section 3.2(e) (in respect of the occurrence of an event contemplated therein), the Holders shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holders receive copies of the supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof and receive notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holders will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holders' possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (iii) upon the expiration of 60 days after the first date on which offers or sales can be made pursuant to clause (i) above, the Holders will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until they have again complied with the provisions of clause (i) above; (iv) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will comply with the provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (v) each Holder and any of Section 3(e))such Holder's partners, Worldspan officers, directors or Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (vi) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will enter into such written agreements as the Company shall notreasonably request to ensure compliance with clauses (iv) and (v) above.
Appears in 1 contract
Sources: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the each Shelf Registration Statement contemplated by pursuant to Section 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the time period set forth in Section 2 2(a) hereof, the a Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of distribution by Worldspan the selling Holders thereof and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof; , (i) prepare and file with the SEC Commission such amendments and post-effective amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf each Prospectus to be amended or supplemented by any required prospectus supplement, and as required and so supplemented to be filed as required by pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC Commission with respect to the such Shelf Registration Statement Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or of distribution by Worldspanthe selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) above with respect to the Shelf a particular Holder of Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received either a written notice (a "Shelf Registration NoticeNo- ▇▇▇▇") from Worldspan such Holder that it intends to make offers or sales under the such Shelf Registration Statement as specified in such Shelf Registration NoticeNotice or a written response from such Holder of the type contemplated by Section 2(b); provided, however, that the Company shall have ten (10) 7 business days to prepare and file any such amendment or supplement after receipt of the Shelf a Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan a Holder has delivered such a Shelf written response or a Registration Notice to the Company, Worldspan such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to the such Shelf Registration Statement or a supplement to the Shelf a Prospectus. Worldspan Offers or sales under such Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan such Holder no longer intend intends to make offers or sales under the such Shelf Registration Statement;.
(c) furnish Worldspan after it to each Holder of Registrable Securities that has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto such Prospectus, including each preliminary Prospectus, by Worldspan each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf such Prospectus or amendment or supplement thereto;the preliminary Prospectus.
(d) use its commercially reasonable best efforts to register or qualify the Registrable Securities covered thereby by the time the such Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or "blue sky sky" laws of such jurisdictions in the United States and its territories and possessions as Worldspan any Holder of Registrable Securities covered by such Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it a Holder that has delivered a Shelf Registration Notice to the Company, whichever is shorter, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities then owned by such Holder (after giving effect to the redemption of Partnership Units then held by such Holder); provided, however, that in connection therewith, the Company shall not be required to (i) to qualify as a foreign corporation generally to do business in any jurisdiction or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction, jurisdiction or (iii) file a to submit to the general consent to service of process in any such jurisdiction;.
(e) notify Worldspan each Holder when such Shelf Registration Statement has become effective and notify each Holder of Registrable Securities that has delivered a Registration Notice to the Company promptly and, if requested by Worldspansuch Holder, confirm such advice in writing, writing (i) when the Shelf Registration Statement and any post-effective amendments thereto have and supplements to such Shelf Registration Statement become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the such Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iviii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, purpose and (viv) of the happening of any event during the period the such Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) in the Shelf Prospectus as then amended or supplemented contains any untrue statement case of a material fact or omits to state any material fact necessary in order to make the statements thereinProspectus, in light of the circumstances under which they were made, ) not misleading;.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the such Shelf Registration Statement or any part thereof as promptly as possible;at the earliest possible moment.
(g) furnish to Worldspan after delivery each Holder of Registrable Securities covered thereby that has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the such Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);.
(h) cooperate with Worldspan the selling Holders of Registrable Securities covered thereby to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number numbers of shares and registered in such names as Worldspan the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3(e3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the such Shelf Registration Statement, Statement or a related Prospectus or any document incorporated therein by reference or file any other required document, in any such case to the extent necessary document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading;.
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to representatives of the Company Holders of the Registrable Securities and any counsel, accountants counsel or other representatives accountant retained by Worldspan such Holders, all financial and other records, pertinent corporate documents and properties of the Company Company, and cause the respective officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspanany such representative, counsel, accountants counsel or representatives accountant in connection with the such Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential confidential, and notifies Worldspansuch representatives, counsel, counsel or accountants or representatives in writing that such records, documents or information are confidential confidential, shall not be disclosed by Worldspanthe representatives, counsel, counsel or accountants or representatives unless (i) the disclosure of such disclosure records, documents or information is necessary to avoid or correct a material misstatement or omission in such Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, jurisdiction or (iiiii) such records, documents or information become have been generally made available to the public other otherwise than through a breach in violation of this Agreement;.
(k) a reasonable time prior to the filing of any Prospectus, any amendment to such Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement theretoto a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has the Holders of Registrable Securities that have provided a Shelf Registration Notice to the Company;.
(l) use its reasonable best efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;.
(m) provide obtain a CUSIP number for all Registrable Securities, not later than the effective date of a such Shelf Registration Statement; and.
(n) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by such Shelf Registration Statement to be registered with or any similar rule approved by such other governmental agencies or authorities as may be adopted necessary by virtue of the SECbusiness and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require Worldspan each Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by Worldspan such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the any Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and each Holder agrees that with the Company that:
(i) it will not offer or sell any its Registrable Securities under the a Shelf Registration Statement until (A) it has either (1) provided a Shelf Registration Notice pursuant to Section 3(b) hereof or (2) had Registrable Securities included in such Shelf Registration Statement at the time it became effective pursuant to Section 2(b) hereof and (B) it has received copies of the Shelf supplemented or amended Prospectus as then amended or supplemented as contemplated by Section 3(c3(b) hereof and receives notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have amendment has become effective as contemplated by Section 3(e); effective;
(ii) upon receipt of any notice from the Company of the happening of anv event of the kind described in Section 3(b)(iv) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Shelf Registration Statement until such Holder receives copies of the supplemented or amended Prospectus contemplated by Section 3(e3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (in respect at the expense of the occurrence Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of an event the Prospectus covering such Registrable Securities current at the time of receipt of such notice;
(iii) all offers and sales under such Shelf Registration Statement shall be completed within forty-five (45) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such forty-five (45) day period the Holder will not offer or sell its Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clauses (i)(A)(1) and (B) above, except that if the applicable Registration Notice was delivered to the Company at a time which was not part of a Sale Period, such forty-five (45) day period shall be the next succeeding Sale Period;
(iv) if the Company determines in its good faith judgment, after consultation with counsel, that the filing of a Shelf Registration Statement under Section 2 hereof or the use of any Prospectus would require the disclosure of important information which the Company has a bona fide business purpose for preserving as confidential or the disclosure of which would impede the Company's ability to consummate a significant transaction, upon written notice of such determination by the Company, the rights of the Holders to offer, sell or distribute any Registrable Securities pursuant to a Shelf Registration Statement or Prospectus or to require the Company to take action with respect to the registration or sale of any Registrable Securities pursuant to a Shelf Registration Statement (including any action contemplated by clause this Section 3) will be suspended until the date upon which the Company notifies the Holders in writing that suspension of such rights for the grounds set forth in this paragraph is no longer necessary; provided, however, that the Company may not suspend such rights for an aggregate period of more than 90 days in any 12-month period; and
(v) in the case of Section 3(e)the registration of any underwitten equity offering proposed by the Company (other than any registration by the Company on Form S-8, or a successor or substantially similar form, of (i) an employee stock option, stock purchase or compensation plan or of securities issued or issuable pursuant to any such plan or (ii) a dividend reinvestment plan), Worldspan such Holder will agree, if requested in writing by the managing underwriter or underwriters administering such offering, not to effect any offer, sale or distribution of any Registrable Securities (or any option or right to acquire Registrable Securities) (each, a "Transfer") during the period commencing on the 10th day prior to the expected effective date (which date shall notbe stated in such notice) of the registration statement covering such underwritten primary equity offering or, if such offering shall be a "take-down" from an effective shelf registration statement, the 10th day prior to the expected commencement date (which date shall be stated in such notice) of such offering, and ending on the date specified by such managing underwriter in such written request to such Holder; provided, however, that no Holder shall be required to agree not to Transfer its Registrable Securities for a period of time which is longer than the greater of 90 days or the period of time for which any senior executive of the Company is required so to agree in connection with such offering. Nothing in this paragraph shall be read to limit the ability of any Holder to redeem its Partnership Units for Common Shares in accordance with the Partnership Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Corporate Office Properties Trust)
Shelf Registration Procedures. 3.1 In connection Each holder of Registrable Securities agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with the obligations this Section 2. Each holder of Registrable Securities agrees to give written notice to the Company at least six (6) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the Shelf intended distribution of Registrable Securities by such holder required to amend or supplement the Registration Statement contemplated with respect to such intended distribution of Registrable Securities by Section 2 hereofsuch holder; provided, that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least ten percent (10%) of the Registrable Securities. As promptly as is practicable after the date such notice is provided, and in any event within five (5) Business Days after such date, the Company shallshall either:
(a) prepare and file with the SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith;
(b) subject to Section 3(i) hereof; (iA) prepare and file with the SEC such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;
(c) furnish Worldspan after it has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf related Prospectus or a supplement or amendment to any document incorporated therein by reference or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf any other required document, so that such Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall will not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan promptly and, if requested by Worldspan, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading or (B) and so that, as thereafter delivered to purchasers of the Shelf Registrable Securities being sold thereunder, such Prospectus as then amended or supplemented contains will not contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
; (fB) make every reasonable effort to obtain the withdrawal provide each Initiating Holder a copy of any order suspending documents filed pursuant to Section 2(d)(i)(A); and (C) inform each Initiating Holder that the effectiveness of Company has complied with its obligations in Section 2(d)(i)(A) and that the Shelf Registration Statement or any part thereof as promptly as possible;
(g) furnish to Worldspan after delivery of a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and related Prospectus may be used for the purpose of selling all or any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that (or that, if the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of has filed a post-effective amendment to the Shelf Registration Statementwhich has not yet been declared effective, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company will notify each Initiating Holder to that effect, will use reasonable best efforts to secure the effectiveness of such post-effective amendment and any counsel, accountants or other representatives retained by Worldspan will immediately so notify each Initiating Holder when the amendment has become effective); each Initiating Holder will sell all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect pursuant to the Shelf Registration Statement and related Prospectus only during the sixty (60) day period in the case of registration on Form S-3, or the ninety (90) day period in the case of registration on any other form available for registration, commencing with the date on which the Company gives notice (such sixty (60) or ninety (90) day period, as the case may be, to be calculated without regard to any Deferral Period), pursuant to Section 2 hereof 2(d)(i)(C), that the Registration Statement and this Section 3, Worldspan covenants and Prospectus may be used for such purpose; each Initiating Holder agrees that (i) it will not offer or sell any Registrable Securities under the Shelf pursuant to such Registration Statement until it has provided or Prospectus after such Selling Period without giving a Shelf Registration Notice new notice of intention to sell pursuant to Section 3(b2(d) hereof and receiving a further notice from the Company pursuant to Section 2(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer and Chief Financial Officer, to the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Initiating Holder’s Selling Period will not commence until such Initiating Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the Shelf use of the Prospectus as then amended may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or supplemented as contemplated similar material event or (y) a determination by Section 3(c) and notice from the Company that that, in the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect judgment of the occurrence Company, public disclosure of an such material corporate development or similar material event contemplated by clause (v) of Section 3(e)), Worldspan shall notwould not be prejudicial to the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (Seitel Management, Inc.)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 2 3.1 hereof, the Company shall:
(a) i. prepare and file with the SECCommission, within the time period set forth in Section 2 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;
(b) ii. subject to the last six sentences of this Section 3(i3.2(b) and Section 3.2(i) hereof; , (i) prepare and file with the SEC Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for throughout the applicable period; (ii) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (iii) respond as promptly as practicable to any comments received from the SEC Commission with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b3.2(b), Section 3(d3.2(d) or Section 3(i3.2(i) with respect to the Shelf Registrable Securities (Ax) to the extent that (i) in the reasonable opinion of the Company is in possession of (A) securities laws applicable to such sale would require the Company to disclose material non-public information that it deems advisable not to disclose ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (ii) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); or (iii) the Company is engaged contemplating an underwritten Public Offering of its securities and in active negotiations or planning for the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a merger or acquisition or disposition transaction "Financing Period"); and it the Company delivers written notice to Worldspan the Holders to the effect that Worldspan the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) 45 days from the date of such notice; providedPROVIDED, howeverHOWEVER, that Worldspan shall not be precluded from effecting sales pursuant to the Company may deliver only four such notices under this clause (ASection 3.2(b) for more than (90and Section 3.4(a) days during within any 360twelve-day month period, PROVIDED, FURTHEr, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (By) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan any Holder that it such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; providedPROVIDED, howeverHOWEVER, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering . The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the WorldspanHolders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, and (D) if the Company haswill notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, within being otherwise disclosed to the last twelve public (12) month period preceding other than through the date actions of such requestany Holder), already effected two registrations on Form-3 for Worldspan pursuant or ceasing to this Section 3. Once Worldspan has delivered a Shelf Registration Notice be material to the Company, Worldspan and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion Holders of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statementend of the deferral period;
(c) iii. promptly furnish Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) iv. use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; providedPROVIDED, howeverHOWEVER, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d3.2(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) v. notify Worldspan the Holders promptly and, if requested by Worldspana Holder, confirm in writing, (i) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SECCommission, (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iv) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (v) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every vi. use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) vii. promptly furnish to Worldspan the Holders after delivery of a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan all financial and other records, pertinent corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives in connection with the Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;
(l) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), Worldspan shall not
Appears in 1 contract
Sources: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 2 3.1 hereof, the Company shall:
(a) prepare and file with the SECCommission, within the time period set forth in Section 2 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;
(b) subject to the last six sentences of this Section 3(i3.2(b) and Section 3.2(i) hereof; , (iI) prepare and file with the SEC Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for throughout the applicable period; (iiII) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (iiiIII) respond as promptly as practicable to any comments received from the SEC Commission with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b3.2(b), Section 3(d3.2(d) or Section 3(i3.2(i) with respect to the Shelf Registrable Securities (Ax) to the extent that (I) in the reasonable opinion of the Company is in possession of (A) securities laws applicable to such sale would require the Company to disclose material non-public information that it deems advisable not to disclose ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (II) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); OR (III) the Company is engaged contemplating an underwritten Public Offering of its securities and in active negotiations or planning for the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a merger or acquisition or disposition transaction "Financing Period"); and it the Company delivers written notice to Worldspan the Holders to the effect that Worldspan the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) 45 days from the date of such notice; providedPROVIDED, howeverHOWEVER, that Worldspan shall not be precluded from effecting sales pursuant to the Company may deliver only four such notices under this clause (ASection 3.2(b) for more than (90and Section 3.4(a) days during within any 360twelve-day month period, PROVIDED, FURTHER, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (By) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan any Holder that it such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; providedPROVIDED, howeverHOWEVER, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering . The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the WorldspanHolders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, and (D) if the Company haswill notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, within being otherwise disclosed to the last twelve public (12) month period preceding other than through the date actions of such requestany Holder), already effected two registrations on Form-3 for Worldspan pursuant or ceasing to this Section 3. Once Worldspan has delivered a Shelf Registration Notice be material to the Company, Worldspan and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion Holders of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statementend of the deferral period;
(c) promptly furnish Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; providedPROVIDED, howeverHOWEVER, that in connection therewith, the Company shall not be required to (iI) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d3.2(d), (iiII) subject itself to taxation in any such jurisdiction, or (iiiIII) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan the Holders promptly and, if requested by Worldspana Holder, confirm in writing, (iI) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (iiII) when any amendment or supplement to the Shelf Prospectus has been filed with the SECCommission, (iiiIII) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (ivIV) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (vV) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) promptly furnish to Worldspan the Holders after delivery of a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan the Holders to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such number numbers of shares as Worldspan the Holders may reasonably request at least two business days prior to any sale of Shelf Registrable Securities; provided that the Company receives timely notice thereof;
(i) subject to the last six sentences of Section 3.2(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3(e3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan the Holders after it a Holder has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan the Holders all financial and other records, pertinent material corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such material records, documents or information reasonably requested by Worldspanthe Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; providedPROVIDED, howeverHOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspanthe Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspanthe Holders, counsel, accountants or representatives unless (iI) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (iiII) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any the Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;Holders; and
(l) use its reasonable best efforts to cause all Shelf Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than New York Stock Exchange from and after the effective date of a time the Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SECStatement is declared effective. The Company may require Worldspan the Holders to furnish to the Company in writing such information regarding the proposed distribution by Worldspan the Holders as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 3.1 hereof and this Section 33.2, Worldspan covenants the Holders covenant and agrees agree that (iI) it they will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it a Holder has provided a Shelf Registration Notice pursuant to Section 3(b3.2(b) and has have received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c3.2(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e3.2(e); (iiII) upon receipt of any notice from the Company contemplated by Section 3(e3.2(b) or Section 3.2(e) (in respect of the occurrence of an event contemplated therein), the Holders shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holders receive copies of the supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof and receive notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holders will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holders' possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (III) upon the expiration of 60 days after the first date on which offers or sales can be made pursuant to clause (i) above, the Holders will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until they have again complied with the provisions of clause (i) above; (iv) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will comply with the provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (V) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (VI) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will enter into such written agreements as the Company shall reasonably request to ensure compliance with clauses (iv) and (v) of Section 3(e)), Worldspan shall notabove.
Appears in 1 contract
Sources: Registration Rights and Voting Agreement (Dutch Institutional Holding Co Inc)
Shelf Registration Procedures. 3.1 In connection with the obligations filing of the Company with respect to the Shelf any Registration Statement contemplated by pursuant to Section 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) Issuer shall be available for effect such registration to permit the sale of the Registrable Securities such securities covered thereby in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto and in connection with any such Registration Statement filed by Worldspan the Issuer hereunder, the Issuer shall:
(a) Before filing any Registration Statement, the Issuer shall, if requested, furnish to and (ii) shall comply as to form in all material respects with afford the requirements Holders of the applicable form Registrable Shelf Securities, their counsel and include the managing underwriters, if any, a reasonable opportunity to review copies of all financial statements required such documents (including copies of any documents to be incorporated by the SEC reference therein and all exhibits thereto) proposed to be filed therewith;(in each case at least five business days prior to such filing). The Issuer shall not file any such Registration Statement or any amendments or supplements thereto if the Holders of a majority in aggregate liquidation amount of the shares of Amended Series A Preferred Stock covered by such Registration Statement (or, if no such shares are so covered, then by the Holders of a majority of the other securities covered thereby), their counsel, or the managing underwriters, if any, shall reasonably object.
(b) subject to Section 3(i) hereof; (i) prepare Prepare and file with the SEC such amendments and post-effective amendments to such each Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement continuously effective for the applicable periodEffectiveness Period; (ii) cause the Shelf related Prospectus to be amended or supplemented by any Prospectus supplement required by applicable law, and as required and so supplemented to be filed as required by pursuant to Rule 424 (or any similar rule that may be adopted provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified so amended or in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information Prospectus as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;so supplemented.
(c) furnish Worldspan after it has delivered a Shelf Registration Notice to Notify the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan selling Holders of Registrable Securities in connection with Shelf Securities, their counsel and the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
managing underwriters, if any, promptly (d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer but in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(devent within two business days), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan promptly and, if requested by Worldspan, confirm in writing, (i) when the Shelf a Prospectus or any Prospectus supplement or post- effective amendment has been filed, and, with respect to a Registration Statement and or any post-effective amendments thereto have amendment, when the same has become effectiveeffective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf a Registration Statement or of any part thereof order preventing or suspending the use of any Prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Shelf Securities the representations and warranties of the Issuer contained in any agreement (including any underwriting agreement) contemplated by Section 3(n) hereof cease to be true and correct, (iv) if of the Company receives receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Shelf Securities for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event during event, the period the Shelf existence of any condition or any information becoming known that makes any statement made in such Registration Statement is effective as a result or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which (A) any changes in, or amendments or supplements to, such Shelf Registration Statement contains Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) misleading, and that in the Shelf Prospectus as then amended or supplemented contains case of the Prospectus, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;, and (vi) of any of the Issuer's reasonable determination that a post- effective amendment to a Registration Statement would be appropriate.
(fd) make every reasonable effort Use its best efforts to obtain prevent the withdrawal issuance of any order suspending the effectiveness of the Shelf a Registration Statement or of any part thereof as order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Shelf Securities for sale in any jurisdiction, and, if any such order is issued, to use its best efforts to obtain the withdrawal of any such order at the earliest possible date.
(e) If requested by the managing underwriters, if any, or the Holders of a majority in aggregate liquidation amount of the shares of Amended Series A Preferred Stock being sold in connection with an underwritten offering (or, if no such shares are being so sold, then by the Holders of a majority of the other securities being so sold), (i) promptly as possible;practicable incorporate in a prospectus supplement or post-effective amendment such information or revisions to information therein relating to such underwriters or selling Holders as the managing underwriters, if any, or such Holders or their counsel reasonably request to be included or made therein and (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Issuer has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment.
(gf) furnish Furnish to Worldspan after delivery each selling Holder of a Registrable Shelf Registration Notice Securities who so requests and to the Companycounsel and each managing underwriter, if any, without charge, at least one conformed copy of the Shelf Registration Statement or Registration Statements and any each post-effective amendment thereto (without thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Shelf Securities, their respective counsel, and the underwriters, if any, without charge, as many copies of the Prospectus and each amendment or exhibits supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 5, the Issuer hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Shelf Securities, and the underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Shelf Securities covered by such Prospectus and any amendment or supplement thereto, unless requested);.
(h) Prior to any public offering of Registrable Shelf Securities, to use its best efforts to register or qualify, and to cooperate with Worldspan the selling Holders of Registrable Shelf Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shelf Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, or the managing underwriter or underwriters, if any, reasonably request in writing; provided that where Registrable Shelf Securities are offered other than through an underwritten offering, the Issuer agrees to cause its counsel to perform Blue Sky investigations and file any registrations and qualifications required to be filed pursuant to this Section 5(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Shelf Securities covered by the applicable Registration Statement; provided that the Issuer shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Shelf Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Shelf Securities to be sold sold, which certificates shall not bear any restrictive legends and not bearing any Securities Act legendshall be in a form eligible for deposit with The Depository Trust Company; and enable certificates for such Registrable Shelf Securities to be issued for in such number of shares denominations and registered in such names as Worldspan the managing underwriter or underwriters, if any, or Holders may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;request.
(ij) upon Use its best efforts to cause the Registrable Shelf Securities covered by any Registration Statement to be registered with or approved by such governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Shelf Securities, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case the Issuer will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by clause (vparagraph 3(c)(v) of Section 3(eor 3(c)(vi) hereof, use its reasonable efforts as promptly to as practicable prepare and (subject to Section 3(a) hereof) file an amendment or with the SEC, at the expense of the Issuer, a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration StatementStatement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document, in any such case to the extent necessary document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesShelf Securities being sold thereunder, any such Shelf Prospectus as then amended or supplemented will not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading;.
(j1) Use its best efforts to cause any Amended Series A Preferred Stock covered by a Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate liquidation amount of the shares of Amended Series A Preferred Stock covered by such Registration Statement or the managing underwriter or underwriters, if any.
(m) [Intentionally omitted]
(n) In connection with an underwritten offering of Registrable Shelf Securities pursuant to a Shelf Registration, enter into an underwriting agreement as is customary in underwritten offerings of securities similar to the Registrable Shelf Securities and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Shelf Securities and, in such connection, (i) make such representations, warranties to, and covenants with, the underwriters, with respect to the business of the Issuer and its subsidiaries and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings of securities similar to the Registrable Shelf Securities, and confirm the same in writing if and when requested; (ii) obtain the opinion of counsel to the Issuer and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings of securities similar to the Registrable Shelf Securities and such other matters as may be reasonably requested by underwriters; (iii) obtain copies of "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Issuer (and, if necessary, any other independent certified public accountants of any subsidiary of the Issuer or of any business acquired by the Issuer for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings of securities similar to the Registrable Shelf Securities and such other matters as reasonably requested by the managing underwriter or underwriters; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section ___ hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(o) Make available for inspection by Worldspan after it has provided a any selling Holder of such Registrable Shelf Registration Notice to the Company Securities being sold, any underwriter participating in any such disposition of Registrable Shelf Securities, if any, and any counselattorney, accountants accountant or other representatives agent retained by Worldspan any such selling Holder, or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, records and pertinent corporate documents and properties of the Company Issuers and their respective subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company Issuer and its subsidiaries to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives any such Inspector in connection with the Shelf such Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to . Such Records shall be kept confidential by each Inspector and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives the Inspectors unless (i) the disclosure of such disclosure Records is necessary to avoid or correct a misstatement or omission in such Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) the information in such Records is public or (ii) such records, documents or information become has been made generally available to the public other than through as a breach result of a disclosure or failure to safeguard by such Inspector or (iv) disclosure of such information is, in the opinion of counsel for any Inspector, necessary or advisable in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Inspector and arising out of, based upon, related to, or involving this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus transactions contemplated hereby or any amendment or supplement thereto, provide copies arising hereunder. Each selling Holder of such document (Registrable Shelf Securities will be required to agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not including be used by it as the basis for any documents incorporated by reference therein market transactions in the securities of the Issuers unless requested) to Worldspan after it has provided a Shelf Registration Notice and until such is made generally available to the Company;public. Each selling Holder of such Registrable Shelf Securities will be required to further agree that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer to undertake appropriate action to prevent disclosure of the Records deemed confidential at their expense.
(lp) use its reasonable efforts [Intentionally omitted.]
(q) Comply with all applicable rules and regulations of the SEC and make generally available to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the securityholders of the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), Worldspan shall notstat
Appears in 1 contract
Shelf Registration Procedures. 3.1 In connection with the obligations filing of the Company with respect to the Shelf any Registration Statement contemplated by pursuant to Section 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the time period set forth in Section 2 hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) Issuer shall be available for effect such registration to permit the sale of the Registrable Securities such securities covered thereby in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto and in connection with any such Registration Statement filed by Worldspan the Issuer hereunder, the Issuer shall:
(a) Before filing any Registration Statement, the Issuer shall, if requested, furnish to and (ii) shall comply as to form in all material respects with afford the requirements Holders of the applicable form Registrable Shelf Securities, their counsel and include the managing underwriters, if any, a reasonable opportunity to review copies of all financial statements required such documents (including copies of any documents to be incorporated by the SEC reference therein and all exhibits thereto) proposed to be filed therewith;(in each case at least five business days prior to such filing). The Issuer shall not file any such Registration Statement or any amendments or supplements thereto if the Holders of a majority in aggregate liquidation amount of the shares of Series A Preferred Stock covered by such Registration Statement (or, if no such shares are so covered, then by the Holders of a majority of the other securities covered thereby), their counsel, or the managing underwriters, if any, shall reasonably object.
(b) subject to Section 3(i) hereof; (i) prepare Prepare and file with the SEC such amendments and post-effective amendments to such each Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement continuously effective for the applicable periodEffectiveness Period; (ii) cause the Shelf related Prospectus to be amended or supplemented by any Prospectus supplement required by applicable law, and as required and so supplemented to be filed as required by pursuant to Rule 424 (or any similar rule that may be adopted provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified so amended or in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information Prospectus as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;so supplemented.
(c) furnish Worldspan after it has delivered a Shelf Registration Notice to Notify the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan selling Holders of Registrable Securities in connection with Shelf Securities, their counsel and the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
managing underwriters, if any, promptly (d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer but in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(devent within two business days), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan promptly and, if requested by Worldspan, confirm in writing, (i) when the Shelf a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement and or any post-effective amendments thereto have amendment, when the same has become effectiveeffective (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf a Registration Statement or of any part thereof order preventing or suspending the use of any Prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Shelf Securities the representations and warranties of the Issuer contained in any agreement (including any underwriting agreement) contemplated by Section 3(n) hereof cease to be true and correct, (iv) if of the Company receives receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Shelf Securities for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (v) of the happening of any event during event, the period the Shelf existence of any condition or any information becoming known that makes any statement made in such Registration Statement is effective as a result or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of which (A) any changes in, or amendments or supplements to, such Shelf Registration Statement contains Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) misleading, and that in the Shelf Prospectus as then amended or supplemented contains case of the Prospectus, it will not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;, and (vi) of any of the Issuer's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(fd) make every reasonable effort Use its best efforts to obtain prevent the withdrawal issuance of any order suspending the effectiveness of the Shelf a Registration Statement or of any part thereof as order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Shelf Securities for sale in any jurisdiction, and, if any such order is issued, to use its best efforts to obtain the withdrawal of any such order at the earliest possible date.
(e) If requested by the managing underwriters, if any, or the Holders of a majority in aggregate liquidation amount of the shares of Series A Preferred Stock being sold in connection with an underwritten offering (or, if no such shares are being so sold, then by the Holders of a majority of the other securities being so sold), (i) promptly as possible;practicable incorporate in a prospectus supplement or post-effective amendment such information or revisions to information therein relating to such underwriters or selling Holders as the managing underwriters, if any, or such Holders or their counsel reasonably request to be included or made therein and (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Issuer has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment.
(gf) furnish Furnish to Worldspan after delivery each selling Holder of a Registrable Shelf Registration Notice Securities who so requests and to the Companycounsel and each managing underwriter, if any, without charge, at least one conformed copy of the Shelf Registration Statement or Registration Statements and any each post-effective amendment thereto (without thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Shelf Securities, their respective counsel, and the underwriters, if any, without charge, as many copies of the Prospectus and each amendment or exhibits supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 5, the Issuer hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Shelf Securities, and the underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Shelf Securities covered by such Prospectus and any amendment or supplement thereto, unless requested);.
(h) Prior to any public offering of Registrable Shelf Securities, to use its best efforts to register or qualify, and to cooperate with Worldspan the selling Holders of Registrable Shelf Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shelf Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, or the managing underwriter or underwriters, if any, reasonably request in writing; provided that where Registrable Shelf Securities are offered other than through an underwritten offering, the Issuer agrees to cause its counsel to perform Blue Sky investigations and file any registrations and qualifications required to be filed pursuant to this Section 5(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Shelf Securities covered by the applicable Registration Statement; provided that the Issuer shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Registrable Shelf Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Shelf Securities to be sold sold, which certificates shall not bear any restrictive legends and not bearing any Securities Act legendshall be in a form eligible for deposit with The Depository Trust Company; and enable certificates for such Registrable Shelf Securities to be issued for in such number of shares denominations and registered in such names as Worldspan the managing underwriter or underwriters, if any, or Holders may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;request.
(ij) upon Use its best efforts to cause the Registrable Shelf Securities covered by any Registration Statement to be registered with or approved by such governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Shelf Securities, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case the Issuer will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by clause (vparagraph 3(c)(v) of Section 3(eor 3(c)(vi) hereof, use its reasonable efforts as promptly to as practicable prepare and (subject to Section 3(a) hereof) file an amendment or with the SEC, at the expense of the Issuer, a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration StatementStatement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document, in any such case to the extent necessary document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesShelf Securities being sold thereunder, any such Shelf Prospectus as then amended or supplemented will not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading;.
(j1) Use its best efforts to cause any Series A Preferred Stock covered by a Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate liquidation amount of the shares of Series A Preferred Stock covered by such Registration Statement or the managing underwriter or underwriters, if any.
(m) [Intentionally omitted]
(n) In connection with an underwritten offering of Registrable Shelf Securities pursuant to a Shelf Registration, enter into an underwriting agreement as is customary in underwritten offerings of securities similar to the Registrable Shelf Securities and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Shelf Securities and, in such connection, (i) make such representations, warranties to, and covenants with, the underwriters, with respect to the business of the Issuer and its subsidiaries and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings of securities similar to the Registrable Shelf Securities, and confirm the same in writing if and when requested; (ii) obtain the opinion of counsel to the Issuer and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings of securities similar to the Registrable Shelf Securities and such other matters as may be reasonably requested by underwriters; (iii) obtain copies of "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Issuer (and, if necessary, any other independent certified public accountants of any subsidiary of the Issuer or of any business acquired by the Issuer for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings of securities similar to the Registrable Shelf Securities and such other matters as reasonably requested by the managing underwriter or underwriters; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 5 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(o) Make available for inspection by Worldspan after it has provided a any selling Holder of such Registrable Shelf Registration Notice to the Company Securities being sold, any underwriter participating in any such disposition of Registrable Shelf Securities, if any, and any counselattorney, accountants accountant or other representatives agent retained by Worldspan any such selling Holder, or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, records and pertinent corporate documents and properties of the Company Issuers and their respective subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company Issuer and its subsidiaries to supply all such records, documents or information reasonably requested by Worldspan, counsel, accountants or representatives any such Inspector in connection with the Shelf such Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to . Such Records shall be kept confidential by each Inspector and notifies Worldspan, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives the Inspectors unless (i) the disclosure of such disclosure Records is necessary to avoid or correct a misstatement or omission in such Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) the information in such Records is public or (ii) such records, documents or information become has been made generally available to the public other than through as a breach result of a disclosure or failure to safeguard by such Inspector or (iv) disclosure of such information is, in the opinion of counsel for any Inspector, necessary or advisable in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Inspector and arising out of, based upon, related to, or involving this Agreement;
(k) a reasonable time prior to the filing of any Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus transactions contemplated hereby or any amendment or supplement thereto, provide copies arising hereunder. Each selling Holder of such document (Registrable Shelf Securities will be required to agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not including be used by it as the basis for any documents incorporated by reference therein market transactions in the securities of the Issuers unless requested) to Worldspan after it has provided a Shelf Registration Notice and until such is made generally available to the Company;public. Each selling Holder of such Registrable Shelf Securities will be required to further agree that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer to undertake appropriate action to prevent disclosure of the Records deemed confidential at their expense.
(lp) use its reasonable efforts [Intentionally omitted.]
(q) Comply with all applicable rules and regulations of the SEC and make generally available to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the securityholders of the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of a Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish to the Company in writing such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), Worldspan shall not
Appears in 1 contract
Sources: Registration Rights Agreement (Forman Petroleum Corp)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the each Shelf Registration Statement contemplated by pursuant to Section 2 hereof, the Company shall:
(a) prepare and file with the SEC, within the time period set forth in Section 2 2(a) hereof, the a Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities covered thereby in accordance with the intended method or methods of distribution by Worldspan the selling Holders thereof and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;.
(b) subject to the last three sentences of this Section 3(b) and to Section 3(i) hereof; , (i) prepare and file with the SEC Commission such amendments and post-effective amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period; (ii) cause the Shelf each Prospectus to be amended or supplemented by any required prospectus supplement, and as required and so supplemented to be filed as required by pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC Commission with respect to the such Shelf Registration Statement Statement, or any amendment, post-effective amendment or supplement relating thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or of distribution by Worldspanthe selling Holders thereof. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) above with respect to the Shelf a particular Holder of Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received either a written notice (a "Shelf Registration NoticeNo-▇▇▇▇") from Worldspan such Holder that it intends to make offers or sales under the such Shelf Registration Statement as specified in such Shelf Registration NoticeNotice or a written response from such Holder of the type contemplated by Section 2(b); provided, however, that the Company shall have ten (10) 7 business days to prepare and file any such amendment or supplement after receipt of the Shelf a Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan a Holder has delivered such a Shelf written response or a Registration Notice to the Company, Worldspan such Holder shall promptly provide to the Company such information as the Company reasonably requests in order to identify such Holder and the method of distribution in a post-effective amendment to the such Shelf Registration Statement or a supplement to the Shelf a Prospectus. Worldspan Offers or sales under such Shelf Registration Statement may be made only during a Sale Period. Such Holder also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan such Holder no longer intend intends to make offers or sales under the such Shelf Registration Statement;.
(c) furnish Worldspan after it to each Holder of Registrable Securities that has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus applicable Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto such Prospectus, including each preliminary Prospectus, by Worldspan each such Holder of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf such Prospectus or amendment or supplement thereto;the preliminary Prospectus.
(d) use its commercially reasonable best efforts to register or qualify the Registrable Securities covered thereby by the time the such Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or "blue sky sky" laws of such jurisdictions in the United States and its territories and possessions as Worldspan any Holder of Registrable Securities covered by such Shelf Registration Statement shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it a Holder that has delivered a Shelf Registration Notice to the Company, whichever is shorter, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities then owned by such Holder (after giving effect to the redemption of Partnership Units then held by such Holder); provided, however, that in connection therewith, the Company shall not be required to (i) to qualify as a foreign corporation generally to do business in any jurisdiction or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required so to qualify or register but for this Section 3(d), (ii) to subject itself to taxation in any such jurisdiction, jurisdiction or (iii) file a to submit to the general consent to service of process in any such jurisdiction;.
(e) notify Worldspan each Holder when such Shelf Registration Statement has become effective and notify each Holder of Registrable Securities that has delivered a Registration Notice to the Company promptly and, if requested by Worldspansuch Holder, confirm such advice in writing, writing (i) when the Shelf Registration Statement and any post-effective amendments thereto have and supplements to such Shelf Registration Statement become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the such Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (iviii) if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, purpose and (viv) of the happening of any event during the period the such Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement or a related Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) in the Shelf Prospectus as then amended or supplemented contains any untrue statement case of a material fact or omits to state any material fact necessary in order to make the statements thereinProspectus, in light of the circumstances under which they were made, ) not misleading;.
(f) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the such Shelf Registration Statement or any part thereof as promptly as possible;at the earliest possible moment.
(g) furnish to Worldspan after delivery each Holder of Registrable Securities covered thereby that has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the such Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);.
(h) cooperate with Worldspan the selling Holders of Registrable Securities covered thereby to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number numbers of shares and registered in such names as Worldspan the selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;.
(i) subject to the last three sentences of Section 3(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3(e3(e)(iv) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the such Shelf Registration Statement, Statement or a related Prospectus or any document incorporated therein by reference or file any other required document, in any such case to the extent necessary document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading;.
(j) make available for inspection by Worldspan after it has provided a Shelf Registration Notice to representatives of the Company Holders of the Registrable Securities and any counsel, accountants counsel or other representatives accountant retained by Worldspan such Holders, all financial and other records, pertinent corporate documents and properties of the Company Company, and cause the respective officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by Worldspanany such representative, counsel, accountants counsel or representatives accountant in connection with the such Shelf Registration Statement; provided, however, that such records, documents or information which the Company determines in good faith to be confidential confidential, and notifies Worldspansuch representatives, counsel, counsel or accountants or representatives in writing that such records, documents or information are confidential confidential, shall not be disclosed by Worldspanthe representatives, counsel, counsel or accountants or representatives unless (i) the disclosure of such disclosure records, documents or information is necessary to avoid or correct a material misstatement or omission in such Shelf Registration Statement, (ii) the release of such records, documents or information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, jurisdiction or (iiiii) such records, documents or information become have been generally made available to the public other otherwise than through a breach in violation of this Agreement;.
(k) a reasonable time prior to the filing of any Prospectus, any amendment to such Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement theretoto a Prospectus, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has the Holders of Registrable Securities that have provided a Shelf Registration Notice to the Company;.
(l) use its reasonable best efforts to cause all Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;.
(m) provide obtain a CUSIP number for all Registrable Securities, not later than the effective date of a such Shelf Registration Statement; and.
(n) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(o) use its reasonable best efforts to cause the Registrable Securities covered by such Shelf Registration Statement to be registered with or any similar rule approved by such other governmental agencies or authorities as may be adopted necessary by virtue of the SECbusiness and operations of the Company to enable Holders that have delivered Registration Notices to the Company to consummate the disposition of such Registrable Securities. The Company may require Worldspan each Holder of Registrable Securities to furnish to the Company in writing such information regarding the proposed distribution by Worldspan such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the any Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and each Holder agrees that with the Company that:
(i) it will not offer or sell any its Registrable Securities under the a Shelf Registration Statement until (A) it has either (1) provided a Shelf Registration Notice pursuant to Section 3(b) hereof or (2) had Registrable Securities included in such Shelf Registration Statement at the time it.became effective pursuant to Section 2(b) hereof and (B) it has received copies of the Shelf supplemented or amended Prospectus as then amended or supplemented as contemplated by Section 3(c3(b) hereof and receives notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have amendment has become effective as contemplated by Section 3(e); effective;
(ii) upon receipt of any notice from the Company of the happening of anv event of the kind described in Section 3(b)(iv) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Shelf Registration Statement until such Holder receives copies of the supplemented or amended Prospectus contemplated by Section 3(e3(i) hereof and receives notice that any post-effective amendment has become effective, and, if so directed by the Company, such Holder will deliver to the Company (in respect at the expense of the occurrence Company) all copies in its possession, other than permanent file copies then in such Holder's possession, of an event the Prospectus covering such Registrable Securities current at the time of receipt of such notice;
(iii) all offers and sales under such Shelf Registration Statement shall be completed within forty-five (45) days after the first date on which offers or sales can be made pursuant to clause (i) above, and upon expiration of such forty-five (45) day period the Holder will not offer or sell its Registrable Securities under the Shelf Registration Statement until it has again complied with the provisions of clauses (i)(A)(1) and (B) above, except that if the applicable Registration Notice was delivered to the Company at a time which was not part of a Sale Period, such forty-five (45) day period shall be the next succeeding Sale Period;
(iv) if the Company determines in its good faith judgment, after consultation with counsel, that the filing of a Shelf Registration Statement under Section 2 hereof or the use of any Prospectus would require the disclosure of important information which the Company has a bona fide business purpose for preserving as confidential or the disclosure of which would impede the Company's ability to consummate a significant transaction, upon written notice of such determination by the Company, the rights of the Holders to offer, sell or distribute any Registrable Securities pursuant to a Shelf Registration Statement or Prospectus or to require the Company to take action with respect to the registration or sale of any Registrable Securities pursuant to a Shelf Registration Statement (including any action contemplated by clause this Section 3) will be suspended until the date upon which the Company notifies the Holders in writing that suspension of such rights for the grounds set forth in this paragraph is no longer necessary; provided, however, that the Company may not suspend such rights for an aggregate period of more than 90 days in any 12-month period; and
(v) in the case of Section 3(e)the registration of any underwitten equity offering proposed by the Company (other than any registration by the Company on Form S-8, or a successor or substantially similar form, of (i) an employee stock option, stock purchase or compensation plan or of securities issued or issuable pursuant to any such plan or (ii) a dividend reinvestment plan), Worldspan such Holder will agree, if requested in writing by the managing underwriter or underwriters administering such offering, not to effect any offer, sale or distribution of any Registrable Securities (or any option or right to acquire Registrable Securities) (each, a "Transfer") during the period commencing on the 10th day prior to the expected effective date (which date shall notbe stated in such notice) of the registration statement covering such underwritten primary equity offering or, if such offering shall be a "take-down" from an effective shelf registration statement, the 10th day prior to the expected commencement date (which date shall be stated in such notice) of such offering, and ending on the date specified by such managing underwriter in such written request to such Holder; provided, however, that no Holder shall be required to agree not to Transfer its Registrable Securities for a period of time which is longer than the greater of 90 days or the period of time for which any senior executive of the Company is required so to agree in connection with such offering. Nothing in this paragraph shall be read to limit the ability of any Holder to redeem its Partnership Units for Common Shares in accordance with the Partnership Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Corporate Office Properties, L.P.)
Shelf Registration Procedures. 3.1 In connection with the obligations of the Company with respect to the Shelf Registration Statement contemplated by Section 2 3.1 hereof, the Company shall:
(a) prepare and file with the SECCommission, within the time period set forth in Section 2 3.1(a) hereof, the Shelf Registration Statement, which Shelf Registration Statement (i) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan and (ii) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC Commission to be filed therewith;
(b) subject to the last six sentences of this Section 3(i3.2(b) and Section 3.2(i) hereof; , (iI) prepare and file with the SEC Commission such amendments to such Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for throughout the applicable period; (iiII) cause the Shelf Prospectus to be amended or supplemented as required and to be filed as required by Rule 424 or any similar rule that may be adopted under the Securities Act; and (iiiIII) respond as promptly as practicable to any comments received from the SEC Commission with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b3.2(b), Section 3(d3.2(d) or Section 3(i3.2(i) with respect to the Shelf Registrable Securities (Ax) to the extent that (I) in the reasonable opinion of the Company is in possession of (A) securities laws applicable to such sale would require the Company to disclose material non-public information that it deems advisable not to disclose ("Non-Public Information") and (B) the disclosure of such Non-Public Information would materially adversely affect the Company; (II) such sale would occur during the measurement period for determining the amount of Common Stock, or the amount of any other consideration the amount of which will be based on the price of the Common Stock, in connection with the acquisition of a business or assets by the Company (a "Measurement Period"); OR (III) the Company is engaged contemplating an underwritten Public Offering of its securities and in active negotiations or planning for the reasonable opinion of the underwriters such sale would interfere materially with such Public Offering by the Company (a merger or acquisition or disposition transaction "Financing Period"); and it the Company delivers written notice to Worldspan the Holders to the effect that Worldspan the Holders may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) 45 days from the date of such notice; providedPROVIDED, howeverHOWEVER, that Worldspan shall not be precluded from effecting sales pursuant to the Company may deliver only four such notices under this clause (ASection 3.2(b) for more than (90and Section 3.4(a) days during within any 360twelve-day month period, PROVIDED, FURTHER, that the Company may deliver only two such notices under this Section 3.2(b) and Section 3.4(a) within the twelve-month period immediately following the expiration of the six-month period referred to in Section 3.3(f)(i) hereof and (By) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan any Holder that it such Holder intends to make offers or sales under the Shelf Registration Statement as specified in such Shelf Registration Notice; providedPROVIDED, howeverHOWEVER, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering . The Measurement Period and Financing Period are collectively referred to herein as the "Restricted Period." In the event the sale by the WorldspanHolders of Shelf Registrable Securities is deferred because of the existence of Non-Public Information, and (D) if the Company haswill notify the Holders promptly upon such Non-Public Information being included by the Company in a filing with the Commission, within being otherwise disclosed to the last twelve public (12) month period preceding other than through the date actions of such requestany Holder), already effected two registrations on Form-3 for Worldspan pursuant or ceasing to this Section 3. Once Worldspan has delivered a Shelf Registration Notice be material to the Company, Worldspan and upon such notice being given by the Company, the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. In the event the sale by the Holders of Shelf Registrable Securities is deferred because it is proposed to be made during a Restricted Period, the Company shall specify, in notifying the Holders of the deferral of its sale, when the Restricted Period will end, at which time the Holders shall again be entitled to sell Shelf Registrable Securities as provided herein. If the Restricted Period is thereafter changed, the Company will promptly notify the Holders of such change and upon the end of the Restricted Period as so changed, the Holders will again be entitled to sell Shelf Registrable Securities as provided herein. If an agreement to which such Restricted Period relates is terminated prior to the end of the Restricted Period, the deferral period hereunder shall end immediately and the Company shall promptly provide to the Company such information as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion Holders of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statementend of the deferral period;
(c) promptly furnish Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, without charge, as many copies of each Shelf Prospectus and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Shelf Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan the Holders of Shelf Registrable Securities in connection with the offering and sale of the Shelf Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
(d) use its commercially reasonable efforts to register or qualify the Shelf Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC Commission under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan the Holders shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan the Holders after it a Holder has delivered a Shelf Registration Notice to the Company, whichever is shorter; providedPROVIDED, howeverHOWEVER, that in connection therewith, the Company shall not be required to (iI) qualify as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(d3.2(d), (iiII) subject itself to taxation in any such jurisdiction, or (iiiIII) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan the Holders promptly and, if requested by Worldspana Holder, confirm in writing, (iI) when the Shelf Registration Statement and any post-effective amendments thereto have become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SECCommission, (iiiIII) of the issuance by the SEC Commission or any state securities authority of any stop order suspending the effectiveness of the Shelf Registration Statement or any part thereof or the initiation of any proceedings for that purpose, (ivIV) if the Company receives any notification with respect to the suspension of the qualification of the Shelf Registrable Securities for offer or sale in any jurisdiction or the initiation of any proceeding for such purpose, and (vV) of the happening of any event during the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement or any part thereof as promptly as possible;
(g) promptly furnish to Worldspan the Holders after delivery of a Holder has delivered a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan the Holders to facilitate the timely preparation and delivery of certificates representing Shelf Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Shelf Registrable Securities to be issued for such number numbers of shares as Worldspan the Holders may reasonably request at least two business days prior to any sale of Shelf Registrable Securities; provided that the Company receives timely notice thereof;
(i) subject to the last six sentences of Section 3.2(b) hereof, upon the occurrence of any event contemplated by clause (v) of Section 3(e3.2(e) hereof, use its reasonable best efforts promptly to prepare and file an amendment or a supplement to the Shelf Prospectus or any document incorporated therein by reference or prepare, file and obtain effectiveness of a post-effective amendment to the Shelf Registration Statement, or file any other required document, in any such case to the extent necessary so that, as thereafter delivered to the purchasers of the Shelf Registrable Securities, such Shelf Prospectus as then amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(j) make available for inspection by Worldspan the Holders after it a Holder has provided a Shelf Registration Notice to the Company and any counsel, accountants or other representatives retained by Worldspan the Holders all financial and other records, pertinent material corporate documents and properties of the Company and cause the officers, directors and employees of the Company to supply all such material records, documents or information reasonably requested by Worldspanthe Holders, counsel, accountants or representatives in connection with the Shelf Registration Statement; providedPROVIDED, howeverHOWEVER, that such records, documents or information which the Company determines in good faith to be confidential and notifies Worldspanthe Holders, counsel, accountants or representatives in writing that such records, documents or information are confidential shall not be disclosed by Worldspanthe Holders, counsel, accountants or representatives unless (iI) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (iiII) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(k) a reasonable time prior to the filing of any the Shelf Registration Statement or any amendment thereto, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice to the Company;Holders; and
(l) use its reasonable best efforts to cause all Shelf Registrable Securities to be listed on any securities exchange or quotation system on which similar securities issued by the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, not later than New York Stock Exchange from and after the effective date of a time the Shelf Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SECStatement is declared effective. The Company may require Worldspan the Holders to furnish to the Company in writing such information regarding the proposed distribution by Worldspan the Holders as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 3.1 hereof and this Section 33.2, Worldspan covenants the Holders covenant and agrees agree that (iI) it they will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until it a Holder has provided a Shelf Registration Notice pursuant to Section 3(b3.2(b) and has have received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c3.2(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e3.2(e); (iiII) upon receipt of any notice from the Company contemplated by Section 3(e3.2(b) or Section 3.2(e) (in respect of the occurrence of an event contemplated therein), the Holders shall not offer or sell any Shelf Registrable Securities pursuant to the Shelf Registration Statement until the Holders receive copies of the supplemented or amended Shelf Prospectus contemplated by Section 3.2(i) hereof and receive notice that any post-effective amendment has become effective, and, if so directed by the Company, the Holders will deliver to the Company (at the expense of the Company) all copies in its possession, other than permanent file copies then in the Holders' possession, of the Shelf Prospectus as amended or supplemented at the time of receipt of such notice; (III) upon the expiration of 60 days after the first date on which offers or sales can be made pursuant to clause (i) above, the Holders will not offer or sell any Shelf Registrable Securities under the Shelf Registration Statement until they have again complied with the provisions of clause (i) above; (iv) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will comply with the provisions of Regulation M under the Exchange Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; (V) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Shelf Registrable Securities pursuant to the Shelf Registration Statement; and (VI) each Holder and any of such Holder's partners, officers, directors or Affiliates, if any, will enter into such written agreements as the Company shall reasonably request to ensure compliance with clauses (iv) and (v) of Section 3(e)), Worldspan shall notabove.
Appears in 1 contract
Sources: Registration Rights and Voting Agreement (Cornerstone Properties Inc)
Shelf Registration Procedures. 3.1 In connection with the obligations filing of the Company with respect to the any Shelf Registration Statement contemplated by Section 2 hereofStatement, the Company shallIssuers shall as expeditiously as possible:
(a) prepare and file with the SEC, within the time period set forth in Section 2 hereofBefore filing any Registration Statement or Prospectus or any amendments or supplements thereto (not including documents that would be incorporated or deemed to be incorporated therein by reference), the Shelf Registration StatementIssuers shall furnish the Initial Purchasers, which Shelf Registration Statement their counsel and the managing underwriters, if any, promptly, with copies of all such documents proposed to be filed; provided, however, that the Issuers shall not be required to afford such persons an opportunity to review a copy of (i) shall be available for the sale any such document that has not been materially changed from a copy of the Registrable Securities in accordance with the intended method or methods of distribution by Worldspan such document that such person was previously furnished to review and (ii) shall comply any amendments or supplements to a Registration Statement or Prospectus which are made solely as to form in all material respects with the requirements a result of the applicable form and include all financial statements required any filing by the SEC Issuers of reports required to be filed therewith;pursuant to the Exchange Act.
(b) subject Use reasonable best efforts to Section 3(i) hereof; (i) prepare and file with the SEC such amendments and post-effective amendments to such Shelf each Registration Statement as may be necessary to keep such Shelf Registration Statement continuously effective for the applicable periodtime periods prescribed hereby; (ii) cause the Shelf related Prospectus to be amended or supplemented by any required Prospectus supplement, and as required and so supplemented to be filed as required by pursuant to Rule 424 (or any similar rule that may be adopted provisions then in force) under the Securities Act; (iii) respond as promptly as practicable to any comments received from the SEC with respect to the Shelf Registration Statement or any amendment thereto; and (iv) comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods or distribution by Worldspan. Notwithstanding anything to the contrary contained herein, the Company shall not be 7 required to take any of the actions described in clauses (i), (ii) or (iii) in this Section 3(b), Section 3(d) or Section 3(i) with respect to the Shelf Registrable Securities (A) to the extent that the Company is in possession of material non-public information that it deems advisable not to disclose or is engaged in active negotiations or planning for a merger or acquisition or disposition transaction and it delivers written notice to Worldspan to the effect that Worldspan may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Worldspan shall not be precluded from effecting sales pursuant to this clause (A) for more than (90) days during any 360-day period, (B) unless and until the Company has received a written notice (a "Shelf Registration Notice") from Worldspan that it intends to make offers or sales under the Shelf Registration Statement as specified so amended or in such Shelf Registration Notice; provided, however, that the Company shall have ten (10) business days to prepare and file any such amendment or supplement after receipt of the Shelf Registration Notice, (C) Form S-3 is not available for such offering by the Worldspan, and (D) if the Company has, within the last twelve (12) month period preceding the date of such request, already effected two registrations on Form-3 for Worldspan pursuant to this Section 3. Once Worldspan has delivered a Shelf Registration Notice to the Company, Worldspan shall promptly provide to the Company such information Prospectus as the Company reasonably requests in order to identify the method of distribution in a post-effective amendment to the Shelf Registration Statement or a supplement to the Shelf Prospectus. Worldspan also shall notify the Company in writing upon completion of such offer or sale or at such time as Worldspan no longer intend to make offers or sales under the Shelf Registration Statement;so supplemented.
(c) furnish Worldspan after it has delivered a Shelf Registration Notice to Notify the Company, without chargecounsel selected by the selling Holders of Transfer Restricted Securities, as many copies of each Shelf Prospectus a group, and any amendment or supplement thereto in order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Shelf Prospectus and any amendment or supplement thereto by Worldspan of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Shelf Prospectus or amendment or supplement thereto;
managing underwriters, if any, promptly (d) use its commercially reasonable efforts to register or qualify the Registrable Securities by the time the Shelf Registration Statement is declared effective by the SEC under all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as Worldspan shall reasonably request in writing, keep each such registration or qualification effective during the period such Shelf Registration Statement is required to be kept effective or during the period offers or sales are being made by Worldspan after it has delivered a Shelf Registration Notice to the Company, whichever is shorter; provided, however, that in connection therewith, the Company shall not be required to (i) qualify as a foreign corporation to do business or to register as a broker or dealer but in any such jurisdiction where it would not otherwise be required to qualify or register but for this Section 3(devent within two business days after becoming aware thereof), (ii) subject itself to taxation in any such jurisdiction, or (iii) file a general consent to service of process in any such jurisdiction;
(e) notify Worldspan promptly and, if requested by Worldspan, such person confirm such notice in writingwriting to such person, (i) when the Shelf a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement and or any post-effective amendments thereto have amendment, when the same has become effective, (ii) when any amendment or supplement to the Shelf Prospectus has been filed with the SEC, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of the Shelf such Registration Statement or of any part thereof order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (iviii) if of the Company receives receipt by the Issuers of any notification with respect to the suspension of the qualification or exemption from qualification of such Registration Statement or any of the Registrable Transfer Restricted Securities for offer or sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (viv) of the happening of any event during event, the period the Shelf Registration Statement is effective as a result of which (A) such Shelf Registration Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (B) the Shelf Prospectus as then amended or supplemented contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f) make every reasonable effort to obtain the withdrawal existence of any order suspending the effectiveness of the Shelf condition or any information becoming known that makes any statement made in such Registration Statement or any part thereof as promptly as possible;
(g) furnish to Worldspan after delivery of a Shelf Registration Notice to the Company, without charge, at least one conformed copy of the Shelf Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with Worldspan to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares as Worldspan may reasonably request at least two business days prior to any sale of Registrable Securities; provided that the Company receives timely notice thereof;
(i) upon the occurrence of any event contemplated by clause (v) of Section 3(e) hereof, use its reasonable efforts promptly to prepare and file an amendment or a supplement to the Shelf related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or prepare, file and obtain effectiveness that requires the making of a post-effective amendment to the Shelf any changes in such Registration Statement, Prospectus or file any other required document, in any such case to the extent necessary documents so that, as thereafter delivered to in the purchasers case of the Registrable Securitiessuch Registration Statement, such Shelf Prospectus as then amended or supplemented it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in order the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are were made, not misleading;, and (v) of the Issuers' reasonable determination that a post-effective amendment to such Registration Statement would be appropriate.
(d) Use its best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Transfer Restricted Securities for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order at the earliest practicable moment.
(e) If requested by the managing underwriters, if any, or the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities being sold in connection with an underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters, if any, or such Holders reasonably request to be included therein, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Issuers received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement; provided, however, that the Company shall not be required to take any action pursuant to this Section 6(e) that would in the opinion of counsel for the Issuers, violate applicable law.
(f) Upon written request to the Issuers, furnish to each selling Holder of Transfer Restricted Securities who so requests in writing, to counsel, and to each managing underwriter, if any, without charge, one conformed copy of the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each selling Holder of Transfer Restricted Securities, their counsel, and the underwriters, if any, without charge, as many copies of each Prospectus (including each form of preliminary prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 6, each Issuer hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Transfer Restricted Securities and the underwriters or agents, if any, in connection with the offering and sale of the Transfer Restricted Securities covered by such Prospectus and any amendment or supplement thereto until such time as the Issuers have notified the Holders to discontinue the use of such Prospectus.
(h) Prior to any public offering of Transfer Restricted Securities, to use their reasonable best efforts to register or qualify, and to cooperate with the selling Holders of Transfer Restricted Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Transfer Restricted Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, or the managing underwriters reasonably request in writing; provided that where Transfer Restricted Securities are offered other than through an underwritten offering, the Issuers agree to use their reasonable best efforts to cause their counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 6(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the applicable Registration Statement; provided, however, that no Issuer shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject to taxation in any such jurisdiction where it is not then so subject.
(i) Cooperate with the selling Holders of Transfer Restricted Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company ("DTC"); and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the managing underwriters, if any, or selling holders of Transfer Restricted Securities may reasonably request in writing at least three Business Days prior to any sale of Transfer Restricted Securities.
(j) Upon the occurrence of any event contemplated by paragraph 6(c)(iv) or 6(c)(v), as promptly as practicable prepare and file with the SEC, at the joint and several expense of each of the Issuers, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Transfer Restricted 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 the light of the circumstances under which they were made, not misleading.
(k) Use its best efforts to cause the Transfer Restricted Securities covered by a Shelf Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Transfer Restricted Securities covered by such Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of any Registration Statement relating to the Transfer Restricted Securities, (i) provide the Trustee with printed certificates for the Transfer Restricted Securities covered by such Registration Statement in a form eligible for deposit with DTC and (ii) provide a CUSIP number(s) for the Transfer Restricted Securities.
(m) Cooperate with each selling Holder of Transfer Restricted Securities covered by any Registration Statement, and each underwriter, if any, participating in the disposition of such Transfer Restricted Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD").
(n) If requested by Holders of a majority in aggregate principal amount of Transfer Restricted Securities covered by such Registration Statement, enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriters in order to expedite or facilitate the registration or the disposition of such Transfer Restricted Securities, and in such connection, (i) make such representations and warranties to the underwriters, with respect to the business of the Issuers and their respective subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings of securities similar to the Registrable Security, and confirm the same if and when requested; (ii) use reasonable best efforts to obtain opinions of counsel to the Issuers and updates thereof in form, scope and substance reasonably satisfactory to the managing underwriters, addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by underwriters; (iii) use reasonable best efforts to obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Issuers (and, if necessary, any other independent certified public accountants of any subsidiary of the Issuers or business acquired by the Issuers for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each of the underwriters such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings of securities similar to the Transfer Restricted Securities; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 8 (or such other less favorable provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Transfer Restricted Securities covered by such Registration Statement and the managing underwriters or agents) with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder.
(o) Make available for inspection by Worldspan after it has provided a Shelf Registration Notice to representative of the Company selling Holders of Transfer Restricted Securities, any underwriter participating in any such disposition of Transfer Restricted Securities, if any, and any counsel, accountants attorney or accountant or other representatives agent retained by Worldspan any such representative of such selling Holders or underwriter (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company Issuers and their subsidiaries, and use their reasonable best efforts to cause the officers, directors and employees of the Company Issuers and their subsidiaries to supply all such recordsinformation, documents or information in each case reasonably requested by Worldspan, counsel, accountants or representatives any such Inspector in connection with the Shelf such Registration Statement; provided, however, that such recordsany information that is designated in writing by the Issuers, documents or information which the Company determines in good faith to faith, as confidential at the time of delivery of such information, shall be kept confidential and notifies Worldspan, counsel, accountants or representatives in writing that by such records, documents or information are confidential shall not be disclosed by Worldspan, counsel, accountants or representatives Inspector unless (i) disclosure of such information is required by court or administrative order, (ii) other than under the circumstances contemplated by, and for the time period permitted by, Section 10, disclosure of such information, in the opinion of counsel to such Inspector, is necessary to avoid or correct a misstatement or omission of a material fact in the Registration Statement, Prospectus or any supplement or post-effective amendment thereto or disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdictionotherwise required by law, or (iiiii) such records, documents or information become becomes generally available to the public other than through as a breach result of this Agreement;
(k) a reasonable time prior disclosure or failure to safeguard by such Inspector; provided further, that the foregoing investigation shall be coordinated on behalf of the Holders by one representative designated by and on behalf of such Holders. Each selling Holder of such Transfer Restricted Securities will be required to agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuers unless and until such is made generally available to the filing public. Each selling Holder of such Transfer Restricted Securities will be required to further agree that it will, upon learning that disclosure of any Shelf Registration Statement such information is sought in a court or any amendment theretoadministrative tribunal of competent jurisdiction, or any Shelf Prospectus or any amendment or supplement thereto, provide copies of such document (not including any documents incorporated by reference therein unless requested) to Worldspan after it has provided a Shelf Registration Notice give notice to the Company;
(l) Issuers and allow the Issuers to undertake appropriate action to prevent disclosure of the information deemed confidential at its expense and will use its reasonable efforts to cooperate with the Issuers in attempting to prevent such disclosure.
(p) Provide an indenture trustee for the Transfer Restricted Securities, and cause all Registrable Securities the Indenture to be listed on any securities exchange or quotation system on which similar securities issued by qualified under the Company are then listed;
(m) provide a CUSIP number for all Registrable Securities, TIA not later than the effective date of a Shelf the first Registration Statement; and
(n) use its commercially reasonable efforts to make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any similar rule as may be adopted by the SEC. The Company may require Worldspan to furnish Statement relating to the Company Transfer Restricted Securities; and in writing connection therewith, cooperate with the trustee under any such information regarding the proposed distribution by Worldspan as the Company may from time to time reasonably request in writing. In connection with and as a condition to the Company's obligations with respect to the Shelf Registration Statement pursuant to Section 2 hereof and this Section 3, Worldspan covenants and agrees that (i) it will not offer or sell any Registrable Securities under the Shelf Registration Statement until it has provided a Shelf Registration Notice pursuant to Section 3(b) and has received copies of the Shelf Prospectus as then amended or supplemented as contemplated by Section 3(c) and notice from the Company that the Shelf Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 3(e); (ii) upon receipt of any notice from the Company contemplated by Section 3(e) (in respect of the occurrence of an event contemplated by clause (v) of Section 3(e)), Worldspan shall notind
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